Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2021
(arising out of S.L.P. (Criminal) No. 5102 of 2020)
Bhima Razu Prasad ...Appellant
Versus
State, rep. By
Deputy Superintendent of Police,
CBI/SPE/ACUII …Respondent
WITH
CRIMINAL APPEAL NO. OF 2021
(arising out of S.L.P. (Criminal) No. 6720 of 2020)
AND
CRIMINAL APPEAL NO. OF 2021
(arising out of S.L.P. (Criminal) No. 6327 of 2020)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. Leave granted.
Signature Not Verified
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2021.03.13
11:16:59 IST
Reason:
1
2. These appeals arise out of judgment dated 6.01.2020 in
Crl. A. Nos. 1089, 1090 and 1091 of 2007 passed by the High
Court of Judicature at Madras (“High Court”). Since they involve
common facts and question of law, appeal arising out of S.L.P.
(Crl.) No. 5102 of 2020 shall be taken as the leading case.
3. The brief facts leading to this appeal are as follows:
3.1 The Appellant/Accused No. 1 was working as Regional
Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd.
On 4.01.2001 case was registered against the Appellant under
Section 120B read with Sections 420, 467, 468 and 471 of the
Indian Penal Code, 1860 (“IPC”); and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC
Act”). Subsequently, the officers of the Respondent investigative
agency conducted search at the Appellant’s residence on
24.01.2001 on the basis of search warrant issued by the Special
Judge, Tis Hazari Court, New Delhi. During the course of this
search, an amount of Rs. 79,65,900/ (“seized currency”), in
addition to jewellery and property papers, was seized from the
Appellant’s residence. Since these assets were found to be
disproportionate to the Appellant’s known sources of income, on
2
9.03.2001 a separate disproportionate assets case was registered
against him under Section 13(2) read with 13(1)(e) of the PC Act.
It is this case that forms the factual crux of the present appeal.
3.2 During the course of investigation, Accused No. 2 V.S.
Krishnan (Appellant in the connected appeal arising out of S.L.P.
(Crl.) No. 6720 of 2020) and Accused No. 3 Murugesan (Appellant
in the connected appeal arising out of S.L.P. (Crl.) No. 6327 of
2020) wrote letter dated 4.02.2002 to the Superintendent of
Police, CBI/ACUII claiming that the seized currency did not
belong to the Appellant/Accused No. 1. They contended that
Accused No. 2 had entered into agreement of sale dated
24.01.2001 to purchase properties from Accused No. 3, for which
a sum of Rs 80 lakhs was to be paid in advance. Since Accused
No. 2 was not available on that date for execution of the written
agreement, he had entrusted the seized currency, along with a
duplicate copy of the agreement signed by him, to the Appellant.
The agreement was to be executed by Accused No. 3 in the
presence of Appellant. However, since the Appellant’s house was
raided on that date, the money could not be paid and the
3
agreement of sale could not be executed. Hence Accused Nos. 2
and 3 sought recovery of the seized currency.
Accused No. 2 produced the purported sale deed dated
24.01.2001 (in duplicate) typed out on stamp paper before the
Investigating Officer in support of their claim. He also produced
certain books of accounts to show that he had financial capacity
to purchase the properties from Accused No. 3, in which entry
was made on 20.01.2001 pertaining to payment of advance price
of Rs 80 lakhs to Accused No. 3. However, pertinently, the
Appellant had not taken any such defence at the time of search
conducted in his house on 24.01.2001, nor had he produced the
duplicate sale deed before the officers of the Respondent agency
at that time.
3.3 Investigation conducted by the Respondent revealed
that the market value fixed by the State Government in respect of
the two properties described in sale deed dated 24.01.2001, was
much below Rs 80 lakhs. Further, that the first property was
equitably mortgaged with the Tamil Nadu Mercantile Bank Ltd.
since 4.9.1998; whereas a portion of the second property had
already been sold to other persons. That the license of Accused
4
No. 4 stamp vendor S. Mohankumar, through whom the stamp
papers of the sale deed were issued on 11.01.2001, was cancelled
on 7.10.1992. No stamp paper of any denomination had been
issued to him during the period of 1998 to 2001. Therefore, the
Respondent’s claim is that the Appellant conspired with Accused
Nos. 24 to fabricate false deed of agreement for sale for the
purpose of being shielded from legal action in the
disproportionate assets case. Accordingly, the Learned Additional
Special Judge for CBI Cases, Chennai (“Trial Court”) framed
charges against the Appellant and Accused Nos. 24 under
Section 120B read with Section 193 of the IPC, in addition to
charges under the PC Act already framed against the Appellant.
Accused No. 4 died during the pendency of trial.
No objection was raised by the accused at the stage of
taking of cognizance. However, during the course of trial, the
Accused argued that complaint under Section 195(1)(b) of the
Code of Criminal Procedure, 1973 (“CrPC”) was necessary for
prosecuting the case under Section 193, IPC. The Trial Court
rejected this argument by referring to the opinion of the
Constitution Bench in Iqbal Singh Marwah and Another v.
5
Meenakshi Marwah and Another , (2005) 4 SCC 370.
Furthermore, based on the evidence on the record, the Trial
Court found that it was not proved that Accused No. 2 had
entrusted the seized currency to the Appellant for holding in
escrow till completion of sale transaction by Accused No. 3.
Hence, the Trial Court convicted the Appellant under Section
13(2) read with Section 13(1)(e) of the PC Act; as well as Sections
120B and 193 of the IPC, and sentenced him to rigorous
imprisonment for two years and payment of fine of Rs 1.5 lakhs.
Accused Nos. 2 and 3 were convicted under Sections 120B and
193 of IPC and sentenced to rigorous imprisonment for one year
and payment of fine of Rs 1 lakh each.
3.4 In appeal before the High Court, Accused Nos. 2 and 3
reiterated that the requirements of Sections 195(1)(b)(i) and 340
of the CrPC were not complied with prior to framing of charge
under Section 193, IPC. Therefore, framing of charge without
conduct of inquiry and making of written complaint by the Trial
Court was illegal and without jurisdiction. The High Court
rejected this contention and held that the procedure under
Section 195(1)(b)(i) is only mandatory in offences which directly
6
affect administration of justice, i.e. pertaining to documents
which are custodia legis . Thus, the offence must be committed
after a document is produced in evidence before the Court.
Therefore Sections 195(1)(b)(i) and 340, CrPC will not be
applicable in the present case where documents were fabricated
during the investigative phase prior to their production during
before the Trial Court.
The High Court relied upon the decision of a threeJudge
Bench of this Court in
Sachida Nand Singh and Another v.
State of Bihar and Another , (1998) 2 SCC 493, and the later
Constitution Bench decision in (supra)
Iqbal Singh Marwah
which affirmed the view taken in Sachida Nand Singh , while
laying down its opinion. Though these decisions were rendered in
the context of interpreting Section 195(1)(b)(ii) of the CrPC, the
High Court held that Section 195(1)(b)(i) is analogous to the
former provision. Hence the observations made in the
aforementioned decisions are equally applicable to the present
case. On merits, the High Court confirmed the Trial Court’s
finding that the Accused had conspired to fabricate false evidence
for shielding Appellant/Accused No. 1 from prosecution in the
7
disproportionate assets case. However, taking into consideration
the advanced age of the Accused and the long passage of time
since taking of cognizance of the case, the sentences awarded to
the Accused were reduced. Nevertheless, the Accused have come
before us in the present appeals challenging the impugned
judgment of the High Court.
4. Learned senior counsel Mr. Basava Prabhu Patil, and
learned counsel Mr. Amit Anand Tiwari and Mr. B. Karunakaran
appearing for the Appellants/Accused, have forcefully argued
that Section 195(1)(b)(i), CrPC cannot be construed as analogous
to Section 195(1)(b)(ii). Therefore, the holding of the Constitution
Bench in Iqbal Singh Marwah (supra) will not be applicable to
the present case. They have relied upon
Bandekar Brothers
Pvt. Ltd. and Another v. Prasad Vassudev Keni and Others ,
AIR 2020 SC 4247 in support of their contentions. Thus, they
have stressed that there is an absolute bar against taking of
cognizance for the offences specified under Section 195(1)(b)(i),
CrPC by any means except upon written complaint by the
concerned Court. This is even if the offence of giving false
evidence under Section 193, IPC was allegedly committed prior to
8
proceedings before a Court of law. Therefore, the prosecution
lodged by the Respondent agency against the Accused under
Section 193, IPC is unsustainable.
4.1 Per contra, learned Additional Solicitor General
appearing for the Respondent, Ms. Aishwarya Bhati, has
contended that the holding in Iqbal Singh Marwah is applicable
in respect of Section 195(1)(b)(i) of the CrPC as well. She has also
sought to distinguish (supra) and other
Bandekar Brothers
decisions relied upon by the learned counsel for the
Appellants/Accused on the ground that these were rendered in
the particular facts of those cases, and will not apply to the
present case.
5. Before we proceed further, we must first consider the
relevant provisions of Sections 195 and 340, CrPC.
“ 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—
(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
9
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 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) of any criminal conspiracy to commit, or attempt
to commit, or the abetment of, any offence specified
in subclause (i) or subclause (ii),
except on the complaint in writing of that Court or by
such officer of the Court as that Court may authorise
in writing in this behalf, or of some other Court to
which that Court is subordinate.
xxx
(3) In clause (b) of SubSection (1), the term “Court”
means a Civil, Revenue or Criminal Court, and
includes a tribunal constituted by or under a Central,
provincial or State Act if declared by that Act to be a
Court for the purposes of this section.”
(emphasis supplied)
10
It is well settled that Section 195(1)(b) creates a bar against
taking cognizance of offences against the administration of
justice for the purpose of guarding against baseless or vindictive
prosecutions by private parties. The provisions of this Section
imply that the Court is the only appropriate authority which is
entitled to raise grievance in relation to perjury, forgery of
documents produced before the Court, and other offences which
interfere with the effective dispensation of justice by the Court.
Hence, it for the Court to exercise its discretion and consider the
suitability of making a complaint for such offences. However,
there is a pertinent difference in the wording of Section 195(1)(b)
(i) and Section 195(1)(b)(ii) inasmuch as Section 195(1)(b)(ii) is
restricted to offences which are committed in respect of a
document which is “ produced or given in evidence in a proceeding
in any court ”. Whereas Section 195(1)(b)(i) applies to offences
against public justice which are committed not only in any
proceeding in any court, but also “ in relation to ” such proceeding.
Whether such semantical difference bars the analogous
application of precedents relating to Section 195(1)(b)(ii) for
interpreting Section 195(1)(b)(i) will be discussed by us later.
11
5.1 Section 340, CrPC prescribes the procedure to be
followed for recording a complaint under Section 195(1)(b):
“ 340. Procedure in cases mentioned in section
195.— (1) When upon an application made to it in
this behalf or otherwise any Court is of opinion that it
is expedient in the interest of justice that an inquiry
should be made into any offence referred to in clause
(b) of SubSection (1) of section 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 in 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 a complaint thereof in writing;
(c) send it to a Magistrate of the first class having
jurisdiction;
(d) take sufficient security for the appearance for the
accused before such Magistrate, or if the alleged
offence is nonbailable 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.
xxx
(4) In this section, “Court” has the same meaning as
in section 195.”
At this juncture, it is relevant to note that a Bench of this
Court (consisting of one of us) in State of Punjab v. Jasbir
, (2020) 12 SCC 96, has referred the question of whether it
Singh
is mandatory for the Court to conduct a preliminary inquiry and
provide opportunity of hearing to the wouldbeaccused under
12
Section 340, CrPC prior to making a complaint under Section
195, for consideration of a larger Bench. Therefore, we shall be
limiting our findings to the issue of whether written complaint by
the Trial
Court was required under Section 195(1)(b)(i), CrPC in the
present case, without delving extensively into the aspect of
whether preliminary inquiry was required to be conducted prior
to such complaint.
5.2 We also find it necessary to consider Sections 192 and
193 of the IPC for the purpose of deciding this matter. Both fall
under Chapter XI, under the heading “ Of False Evidence and
Offences Against Public Justice ”, of the IPC.
“ 192. Fabricating false evidence. Whoever causes
any circumstance to exist or makes any false entry in
any book or record, or electronic record or makes any
document or electronic record containing a false
statement, intending that such circumstance, false
entry or false statement may appear in evidence in a
judicial proceeding, or in a proceeding taken by law
before a public servant as such, or before an
arbitrator, and that such circumstance, false entry or
false statement, so appearing in evidence, may cause
any person who in such proceeding is to form an
opinion upon the evidence, to entertain an erroneous
opinion touching any point material to the result of
such proceeding, is said “to fabricate false evidence”.
xxx
13
193. Punishment for false evidence. Whoever
intentionally gives false evidence in any stage of a
judicial proceeding, or fabricates false evidence for
the purpose of being used in any stage of a judicial
proceeding, shall be punished with imprisonment of
either description for a term which may extend to
seven years, and shall also be liable to fine…
Explanation 2: An investigation directed by law
preliminary to a proceeding before a Court of Justice,
is a stage of a judicial proceeding, though that
investigation may not take place before a Court of
Justice.”
In the present case, the allegation against Accused Nos. 2 and
3 is that they colluded with Appellant/Accused No. 1 to create a
false sale deed, and gave false explanation of escrow arrangement
amongst the three parties, to justify how the seized currency came
to be in the Appellant’s possession. This was done to exonerate the
Appellant/Accused No. 1 and recover the seized currency at the
stage of investigation itself, which is deemed to be “ a stage of a
judicial proceeding ” under Explanation 2 of Section 193. Had the
genuineness of the sale deed been accepted, the Respondent may
have erroneously opined that the seized currency belonged to
Accused No. 2, and consequently abandoned proceedings under
Section 13(1)(e), PC Act against the Appellant. Therefore Section
193, IPC is squarely applicable to the allegations at hand.
14
6. Hence, the primary question of law that arises for
our consideration in these appeals is whether
Section 195(1)(b)(i), CrPC bars lodging of case by
the investigating agency under Section 193, IPC,
in respect of offence of giving false evidence which
is committed at the stage of investigation, prior to
production of such evidence before the Trial
Court? This in turn, requires us to resolve the
following subquestions:
6.1 Whether an offence under Section 193, IPC
committed at the stage of investigation, prior to
production of the false evidence before the Trial
Court by a person who is not yet party to
proceedings before the Trial Court, is an offence
“ in relation to ” a proceeding in any court under
Section 195(1)(b)(i), CrPC?
6.2 Whether the words “ stage of a judicial proceeding ”
under Explanation 2 to Section 193, IPC can be
equated with “ proceeding in any court ” under
Section 195(1)(b)(i), CrPC?
15
I. General overview of the law on Section 195(1)(b)(ii)
7. Before answering the questions stated in paragraph 6
(supra), it may be useful to refer to the landmark precedents of
this Court which have considered similar issues arising under
Section 195(1)(b)(ii), CrPC. The issue of whether Section 195(1)(b)
(ii), CrPC is applicable to documents which are forged prior to
their production in Court is no longer res integra . This Court in
(supra) has held that Section 195(1)(b)(ii)
Sachida Nand Singh
read with Section 340(1), CrPC will only apply in respect of
offences which are committed during the time when the
document concerned was custodia legis or in the custody of the
Court. The reasoning given by the Court was as follows:
“5. The contention of the appellants is that if the
offence alleged is with respect to a document which
reached the Court then the aforesaid bar operates, no
matter whether the offence was committed before or
after its production in court. In other words,
according to the appellants, the decisive event for
attracting the bar is the production of the document
in the Court.
xxx
7. Even if the clause is capable of two interpretations
we are inclined to choose the narrower interpretation
16
for obvious reasons. Section 190 of the Code
empowers “any magistrate of the first class” to take
cognizance of “any offence” upon receiving a
complaint, or police report or information or upon his
own knowledge. Section 195 restricts such general
powers of the magistrate, and the general right of a
person to move the court with a complaint is to that
extent curtailed. It is a wellrecognised canon of
interpretation that provision curbing the general
jurisdiction of the court must normally receive strict
interpretation unless the statute or the context
requires otherwise (Abdul Waheed Khan v. Bhawani
[AIR 1966 SC 1718: (1966) 3 SCR 617]).
8. That apart it is difficult to interpret Section 195(1)
(b)(ii) as containing a bar against initiation of
prosecution proceedings merely because the
document concerned was produced in a court albeit
the act of forgery was perpetrated prior to its
production in the Court. Any such construction is
likely to ensue unsavoury consequences. For
instance, if rank forgery of a valuable document is
detected and the forgerer is sure that he would
imminently be embroiled in prosecution proceedings
he can simply get that document produced in any
longdrawn litigation which was either instituted by
himself or somebody else who can be influenced by
him and thereby preempt the prosecution for the
entire long period of pendency of that litigation. It is a
settled proposition that if the language of a legislation
is capable of more than one interpretation, the one
which is capable of causing mischievous
consequences should be averted…
xxx
17
10…It has to be noted that Section 340 falls within
Chapter XXVI of the Code which contains a fasciculus
of “Provisions as to offences affecting the
administration of justice” as the title of the chapter
appellates. So the offences envisaged in Section
195(1)(b) of the Code must involve acts which would
have affected the administration of justice.
11. The scope of the preliminary enquiry envisaged in
Section 340(1) of the Code is to ascertain whether any
offence affecting administration of justice has been
committed in respect of a document produced in
court or given in evidence in a proceeding in that
Court. In other words, the offence should have been
committed during the time when the document was
in custodia legis .
12. It would be a strained thinking that any offence
involving forgery of a document if committed far
outside the precincts of the Court and long before its
production in the Court, could also be treated as one
affecting administration of justice merely because
that document later reached the court records.
13. The threeJudge Bench of this Court in Patel
Laljibhai Somabhai case [(1971) 2 SCC 376 : 1971
SCC (Cri) 548 : AIR 1971 SC 1935] has interpreted
the corresponding section in the old Code, [Section
195(1)(c)] in almost the same manner as indicated
above…
…The issue involved in Patel Laljibhai Somabhai case
[(1971) 2 SCC 376 : 1971 SCC (Cri) 548 : AIR 1971
SC 1935] related to the applicability of that sub
section to a case where forged document was
produced in a suit by a party thereto, and
18
subsequently a prosecution was launched against
him for offences under Sections 467 and 471 of IPC
through a private complaint. The ratio of the decision
therein is the following: (SCC Headnote)
“The offences about which the court alone is clothed
with the right to complain may, therefore, be
appropriately considered to be only those offences
committed by a party to a proceeding in that court,
the commission of which has a reasonably close
nexus with the proceedings in that court so that it
can without embarking upon a completely
independent and fresh inquiry, satisfactorily consider
by reference principally to its records the expediency
of prosecuting the delinquent party. It, therefore,
appears to be more appropriate to adopt the strict
construction of confirming the prohibition contained
in Section 195(1)(c) only to those cases in which the
offences specified therein were committed by a party
to the proceeding in the character as such party.”
14. After stating so their Lordships proceeded to
observe that the legislature could not have intended
to extend the prohibition in the subsection to
offences committed by a party to the proceedings
prior to his becoming such a party. According to their
Lordships, any construction to the contrary would
unreasonably restrict the right of a person which was
recognized in Section 190 of the Code.”
(emphasis supplied)
Aforementioned observations of this Court in Patel
(supra), as cited in
Laljibhai Somabhai Sachida Nand Singh
(supra), make the import and purpose of Section 195(1)(b), CrPC
19
clear. The provision is intended to bar the right to initiate
prosecution only where the offence committed has a reasonably
close nexus with the court proceedings, such that the Court can
independently determine the need for an inquiry into the offence
with reference to its own records. Therefore, the offence must be
such that directly impacts administration of justice by the Court.
This would certainly be the case if the document was in the
custody of the Court at the time of commission of offence.
However, the bar under Section 195(1)(b)(ii) cannot be read as
operating even in cases where the offence against administration
of justice was committed in respect of a document
1) outside of the Court,
2) by a person who was not yet party to the Court proceedings,
and,
3) at a time long before the production of the document before
the Court.
The same would not have a “ reasonably close nexus ” with the
court proceedings.
20
Though these observations in Sachida Nand Singh were
made in the context of Section 195(1)(b)(ii), we find that they have
useful application in interpreting Section 195(1)(b)(i) as well. The
prohibition contained in Section 195(1)(b)(i) should not be
extended to provide protection to a person who has been accused
of tendering false evidence during the investigative stage prior to
becoming a party to the court proceedings and producing such
evidence before the Court.
8. The view taken in was
Sachida Nand Singh
subsequently affirmed by the Constitution Bench in Iqbal Singh
(supra). In that case, it was alleged that the appellants
Marwah
had created a fictitious will to divest the respondents out of their
share in the disputed property. Since the respondents’
application under Section 340, CrPC was not disposed of, they
filed a criminal complaint for prosecuting the appellants under
Sections 192 and 193, as well as Sections 463 and 471, IPC. The
Metropolitan Magistrate in that case held that both Sections
195(1)(b)(i) and (ii), CrPC operated as a bar against taking
cognizance of these offences. The Sessions Judge and the High
Court, relying on , held that the bar under
Sachida Nand Singh
21
Section 195(1)(b)(ii) would not apply where forgery of a document
was committed before producing the said document in court.
However, it was noticed that appeared to
Sachida Nand Singh
conflict with an earlier threeJudge Bench decision in Surjit
, (1996) 3 SCC 533.
Singh and Others v. Balbir Singh Surjit
Singh had held that the bar against taking cognizance under
Section 195(1)(b)(ii) would apply even if the offences stipulated
therein were committed prior to production of the document
before the Court, if such document was subsequently produced
before the Court. The Constitution Bench clarified the position of
law as follows:
“10…This being the scheme of two provisions or
clauses of Section 195 viz. that the offence should be
such which has direct bearing or affects the
functioning or discharge of lawful duties of a public
servant or has a direct correlation with the
proceedings in a court of justice, the expression
“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” occurring in
clause (b)(ii) should normally mean commission of
such an offence after the document has actually been
produced or given in evidence in the court. The
situation or contingency where an offence as
enumerated in this clause has already been
committed earlier and later on the document is
produced or is given in evidence in court, does not
appear to be in tune with clauses (a)(i) and (b)(i) and
22
consequently with the scheme of Section 195 CrPC.
This indicates that clause (b)(ii) contemplates a
situation where the offences enumerated therein are
committed with respect to a document subsequent to
its production or giving in evidence in a proceeding in
any court.
11…The fact that the procedure for filing a complaint
by court has been provided in Chapter XXVI dealing
with offences affecting administration of justice, is a
clear pointer to the legislative intent that the offence
committed should be of such type which directly
affects the administration of justice viz. which is
committed after the document is produced or given in
evidence in court. Any offence committed with respect
to a document at a time prior to its production or
giving in evidence in court cannot, strictly speaking,
be said to be an offence affecting the administration
of justice.
12. It will be useful to refer to some earlier decisions
touching the controversy in dispute which were
rendered on Section 195 of the Code of Criminal
Procedure, 1898 (for short “the old Code”)…
14. A Full Bench of the Allahabad High Court in
v. [AIR 1931 All 443 : 32
Emperor Kushal Pal Singh
Cri LJ 1105 (SB)] considered the scope of the
aforesaid provision and held, that clause (c) of Section
195(1) applies only to cases where an offence is
committed by a party, as such, to a proceeding to any
court in respect of a document which has been
produced or given in evidence in such proceeding. It
was held that an offence which has already been
committed by a person who does not become a party
till, say, 30 years after the commission of the offence,
cannot be said to have been committed by a party
within the meaning of clause (c). A threeJudge
Bench of this Court in Patel Laljibhai Somabhai v.
State of Gujarat after examination of the controversy
23
in considerable detail observed that as a general rule
the courts consider it expedient in the interest of
justice to start prosecutions as contemplated by
Section 476 (of the old Code which now corresponds
to Section 340 CrPC) only if there is a reasonable
foundation for the charge and there is a reasonable
likelihood of conviction. The requirement of a finding
as to the expediency is understandable in case of an
offence alleged to have been committed either in or in
relation to a proceeding in that court in case of
offences specified in clause (b) [of the old Code
corresponding to clause (b)(i) CrPC] because of the
close nexus between the offence and the proceeding.
In case of offences specified in clause (c), they are
required to be committed by a party to a proceeding
in that court with respect to a document produced or
given in evidence in that court. The court approved
the view taken by the Allahabad High Court in
Emperor v. Kushal Pal Singh and held as under in
para 7 of the Report: ( Patel Laljibhai Somabhai case
[(1971) 2 SCC 376 : 1971 SCC (Cri) 548] , SCC pp.
37677)
“(i) The underlying purpose of enacting Sections
195(1)(b) and (c) and Section 476 seems to be to
control the temptation on the part of the private
parties to start criminal prosecution on frivolous
vexations or insufficient grounds inspired by a
revengeful desire to harass or spite their opponents.
These offences have been selected for the court's
control because of their direct impact on the judicial
process. It is the judicial process or the
administration of public justice which is the direct
and immediate object or the victim of these offences.
As the purity of the proceedings of the court is
directly sullied by the crime, the court is considered
to be the only party entitled to consider the
desirability of complaining against the guilty party.
The private party who might ultimately suffer can
persuade the civil court to file complaint…
24
18. The other case which is the sheet anchor of the
argument of learned counsel for the appellants is
Surjit Singh v. Balbir Singh . The facts as stated in
paras 1 and 11 of the Report show that a criminal
complaint was filed by the respondent under Sections
420, 467, 468, 471 read with 120B IPC alleging that
the appellants had conspired and fabricated an
agreement dated 2671978 and had forged the
signature of Smt Dalip Kaur and on the basis thereof,
they had made a claim to remain in possession of a
house. The Magistrate took cognizance of the offence
on 2791983. The appellants thereafter filed a civil
suit on 921984 wherein they produced the
agreement. It may be noticed that the cognizance by
the criminal court had been taken much before filing
of the civil suit wherein the agreement had been filed.
During the course of discussion, the Court not only
noticed Gopalakrishna Menon [(1983) 4 SCC 240:
1983 SCC (Cri) 822] but also quoted extensively from
. Reference was then made to
Patel Laljibhai
Sanmukhsingh v. R. [AIR 1950 PC 31: 51 Cri LJ 651]
and Sushil Kumar v. State of Haryana [1987 Supp
SCC 654: 1988 SCC (Cri) 136 : AIR 1988 SC 419]
wherein it has been held that the bar of Section 195
would not apply if the original document had not
been produced or given in evidence in court. Then
comes the passage in the judgment (para 10 of the
Report) which we have reproduced in the earlier part
of our judgment. The observations therein should not
be understood as laying down anything contrary to
what has been held in Patel Laljibhai but was made
in the context that bar contained in Section 195(1)(b)
(ii) would not be attracted unless the original
document was filed. It is for this reason that in the
very next paragraph, after observing that the
cognizance had been taken prior to filing of the civil
suit and the original agreement in court, the view
taken by the High Court that the Magistrate could
25
proceed with the trial of the criminal case was upheld
and the appeal was dismissed.
20. Since the object of deletion of the words “by a
party to any proceeding in any court” occurring in
Section 195(1)(c) of the old Code is to afford
protection to witnesses also, the interpretation placed
on the said provision in the earlier decisions would
still hold good.
33. In view of the discussion made above, we are of
the opinion that Sachida Nand Singh has been
correctly decided and the view taken therein is the
correct view. Section 195(1)(b)(ii) CrPC would be
attracted only when the offences enumerated in the
said provision have been committed with respect to a
document after it has been produced or given in
evidence in a proceeding in any court i.e. during the
time when the document was in custodia legis .”
(emphasis supplied)
Curiously, though the facts of also
Iqbal Singh Marwah
required a determination as to the applicability of Section 195(1)
(b)(i), the Constitution Bench did not express any specific finding
on this point. This was perhaps because the limited point for
consideration before the Bench was the apparent conflict between
and (supra). However, it can
Sachida Nand Singh Surjit Singh
nevertheless be seen that the Constitution Bench did not
interpret Section 195(1)(b)(ii) in isolation, but linked its
construction with the overall scheme under Sections 195(1)(b)
26
and 340, CrPC. The Court reiterated the test laid down in
, i.e., that the offence in respect of which
Sachida Nand Singh
only the Court can make a complaint must be one which has a
direct correlation to, or a direct impact on, proceedings before a
court of justice. It is for this reason that only the relevant Court
is vested with the right to consider the desirability of complaining
against the guilty party.
The Court further noted that the situation wherein the
offence as enumerated under Section 195(1)(b)(ii) has been
committed earlier, but the document is produced later in court is
not in consonance with the object of Sections 195(1)(b)(i) either.
Even in , this Court had held on the facts of that
Surjit Singh
case, that since the criminal Court had taken cognizance of the
offence long before filing of the original document before the civil
Court, the bar under Section 195(1)(b)(ii) would not apply.
Similar to Sachida Nand Singh , the Constitution Bench
also referred to the observations made by the threeJudge Bench
in (supra) on Sections 192(b) and
Patel Laljibhai Somabhai
192(c) of the Code of Criminal Procedure, 1898 (“1898 Code”)
which corresponded to Section 192(1)(b)(i) and (ii) of the present
27
CrPC respectively. This Court in Patel Laljibhai Somabhai had
noted that even under Section 192(b) of the 1898 Code
(corresponding to Section 195(1)(b)(i), CrPC), the offence
committed is one with a “ close nexus ” to the court proceedings.
II. Import of the Words “ in relation to ” in Section 195(1)(b)
(i), CrPC.
9. This brings us to the phrase “ in relation to any proceeding
in any Court ”, which appears in Section 195(1)(b)(i), CrPC but is
absent in Section 195(1)(b)(ii). It may be argued that this phrase
makes the scope of Section 195(1)(b)(i) wider than Section 195(1)
(b)(ii). The words “ in relation to ” under Section 195(1)(b(i) appear
to encompass situations wherein false evidence has been
fabricated prior to being produced before a Court of law, for the
purpose of being used in proceedings before the Court. Therefore,
it may not be possible to apply the ratio of Iqbal Singh Marwah
by way of analogy to Section 195(1)(b)(i) in every case.
10. For further elucidation on this point, we may turn to the
recent decision of this Court in (supra). The
Bandekar Brothers
appellants in that case claimed that the respondents/accused
had given false evidence and forged debit notes and books of
28
accounts in civil court proceedings between the parties. They had
initially filed application under Section 340, CrPC before the
relevant Judicial Magistrate. However, they later sought to
convert this into private complaints, in reliance upon Iqbal
Singh Marwah (supra). The respondents objected on the ground
that the bar under Section 195(1)(b)(i) could not be circumvented.
Subsequently, the appellants took the plea that offences under
Section 195(1)(b)(ii) were also made out:
“13. The point forcefully argued by the learned
Counsel on behalf of the Appellants is that his
clients, being victims of forgery, ought not to be
rendered remediless in respect of the acts of forgery
which are committed before they are used as evidence
in a court proceeding, and that therefore, a private
complaint would be maintainable in the fact
circumstance mentioned in the two criminal
complaints referred to hereinabove. The Court has
thus to steer between two opposite poles of a
spectrum the “yin” being the protection of a person
from frivolous criminal complaints, and the “yang”
being the right of a victim to ventilate his grievance
and have the Court try the offence of forgery by
means of a private complaint. In order to appreciate
whether this case falls within the category of avoiding
frivolous litigation, or whether it falls within the
individual's right to pursue a private complaint, we
must needs refer to several decisions of this Court.”
10.1 This Court thereafter proceeded to distinguish between
the offence of fabricating false evidence under Sections 192 and
29
193, IPC and the offence of forgery. It noted that the averments
made by the appellants in their complaints pertained exclusively
to giving of false evidence and did not disclose the ingredients of
forgery as defined under the IPC. Hence, this Court in Bandekar
Brothers upheld the respondents’ contentions, and opined that
would not benefit the appellants in that
Iqbal Singh Marwah
case. Even though the false evidence was created outside of the
Court, it was by the appellants’ own admission, created “ in
relation to ” proceedings before the Court. Thus, this Court held
that:
“19. At this stage, it is important to understand the
difference between the offences mentioned in Section
195(1)(b)(i) and Section 195(1)(b)(ii) of the Code of
Criminal Procedure. Where the facts mentioned in a
complaint attracts the provisions of Section 191 to
193 of the Indian Penal Code, Section 195(1)(b)(i) of
the Code of Criminal Procedure applies. What is
important is that once these Sections of the Indian
Penal Code are attracted, the offence should be
alleged to have been committed in, or in relation to,
any proceeding in any Court. Thus, what is clear is
that the offence punishable under these Sections
does not have to be committed only in any proceeding
in any Court but can also be an offence alleged to
have been committed in relation to any proceeding in
any Court.
22. Contrasted with Section 195(1)(b)(i), Section
195(1)(b)(ii) of the Code of Criminal Procedure speaks
30
of offences described in Section 463, and punishable
under Sections 471, 475 or 476 of the Indian Penal
Code, when such offences are alleged to have been
committed in respect of a document produced or
given in evidence in a proceeding in any Court. What
is conspicuous by its absence in Section 195(1)(b)(ii)
are the words “or in relation to”, making it clear that
if the provisions of Section 195(1)(b)(ii) are attracted,
then the offence alleged to have been committed must
be committed in respect of a document that is
custodia legis , and not an offence that may have
occurred prior to the document being introduced in
court proceedings. Indeed, it is this distinction that is
vital in understanding the sheet anchor of the
Appellant's case namely, this Court's judgment in
Iqbal Singh Marwah (supra).”
(emphasis supplied)
10.2 We fully agree with the aforementioned reasoning. The
presence of “ in relation to ” under Section 195(1)(b)(i) means that
would not have blanket application to
Iqbal Singh Marwah
every case where a complaint is lodged in respect of an offence
specified under that Section. However, on the facts of Bandekar
, this was not a situation in which the offence
Brothers
complained of did not have a “ reasonably close nexus ” with the
court proceedings. The offence of giving false evidence was
committed by the respondents, who were party to the court
proceedings, for the purpose of leading the Court to form an
31
erroneous opinion on a point material to the result of the
proceedings. Hence it could be said that though the offence was
not committed during the course of the court proceedings, it was
certainly committed “ in relation to ” such proceedings.
11. Similar circumstances were present in Kailash Mangal v.
, (2015)
Ramesh Chand (Dead) Through Legal Representative
15 SCC 729 and Narendra Kumar Srivastava v. State of
, (2019) 3 SCC 318, which were the decisions
Bihar and Others
relied upon by this Court in Bandekar Brothers (supra). In
Kailash Mangal , it was alleged that the appellant in that case
had filed a false affidavit before the civil court for getting a civil
suit decreed in his favour. The respondent filed a private
complaint under Section 340, CrPC alleging offence punishable
under Sections 193 and 419, IPC. The Division Bench observed
that:
“10. In the instant case, the false affidavit alleged to
have been filed by the appellant was in a proceeding
pending before the civil court and the offence falls
under Section 193 IPC and the proceeding ought to
have been initiated on the complaint in writing by
that court under Section 195(1)(b)(i) IPC. Since the
offence is said to have been committed in relation to
or in a proceeding in a civil court, the case of Iqbal
Singh Marwah is not applicable to the instant case.”
32
(emphasis supplied)
Therefore, this Court expressly observed in Kailash
that since the document was filed during the course of a
Mangal
proceeding which was already pending before the court, the
offence could be said to have been committed “ in relation to ” such
proceeding for the purpose of Section 195(1)(b)(i), CrPC. The
requirement of reasonable nexus between the offence and the
proceeding before the Court was clearly satisfied in that case.
11.1 In Narendra Kumar Srivastava (supra), the
appellant had filed a private complaint contending that the
respondent officials had produced a false showcause affidavit in
the contempt petition filed by the appellant. Resultantly, the High
Court dropped the contempt case. The Division Bench held that
Section 195(1)(b)(i), CrPC covers a different category of offence
and is therefore distinct from Section 195(1)(b)(ii). Hence
Sachida Nand Singh (supra) would not be applicable, and
cognizance could not have been taken on the basis of a private
complaint. However, on the facts of that case, this was again a
situation wherein at the first instance , the Court was allegedly
33
persuaded to form an opinion based on certain false evidence
which was produced by persons who were already party to the
proceedings . This is a completely different factual matrix from the
present case.
12. Indeed, at this juncture it must be noted that even
Sachida Nand Singh (supra) and Iqbal Singh Marwah (supra)
were rendered in the context of balancing the right of private
parties to initiate complaints in respect of forged documents, with
protecting parties to civil suits from frivolous or vexatious
prosecutions. In neither of the abovementioned decisions has this
Court authoritatively considered the specific issue of preserving
the right of an investigative agency , such as the Respondent in
the present case, to initiate complaints against persons who have
fabricated false evidence during the course of criminal
proceedings.
13. The moot point therefore, as mentioned in Para
Nos. 6 & 6.1, is whether offence committed
under Section 193, IPC during the stage of
investigation, prior to commencement of
proceedings before the Trial Court, by a person
34
who is not yet party to proceedings before the
Trial Court, is an offence committed “ in relation
to ” such proceedings for the purpose of the bar
under Section 195(1)(b)(i), CrPC?
14. The construction of the words “ in relation to ” must be
controlled by the overarching principle applicable to Section
195(1)(b), CrPC as stated in Patel Laljibhai Somabhai (supra)
and (supra), which was affirmed by the
Sachida Nand Singh
Constitution Bench in Iqbal Singh Marwah (supra). That is,
even if the offence is committed prior to giving of the fabricated
evidence in court, it must have a direct or reasonably close nexus
with the court proceedings.
15. Looking to the decision in (supra),
Bandekar Brothers
is true to say that Section 195(1)(b)(i), CrPC may be attracted to
the offence of fabricating false evidence prior to its production
before the Court, provided that such evidence is led by a person
who is party to the court proceedings, for the purpose of leading
the Court to form a certain opinion based on such evidence. The
bar against taking of cognizance under Section 195(1)(b)(i) may
35
also apply where a person who is initially not a party to the court
proceedings fabricates certain evidence, and
1) subsequently becomes a party and produces it before the
Court; or;
2) falsely deposes as a witness before the Court on the strength of
such evidence,
for the purpose of causing the Court to form an erroneous
opinion on a point material to the result of the proceedings.
16. However, where a person fabricates false evidence for the
purpose of misleading the investigating officer , this may not have
any direct nexus with the subsequent court proceedings. There is
an indirect nexus inasmuch as if the investigating agency does
not suspect any wrongdoing, and the Court commits the case for
trial, the evidence will be produced for the Court’s perusal and
impact the judicial decisionmaking process. However, it may be
equally possible that even if the fabricated evidence appears
sufficiently convincing, the investigating agency may drop
proceedings against the accused and divert its time and
resources elsewhere. Therefore, the offence may never reach the
stage of court proceedings. Further, if it subsequently comes to
36
light that the evidence was falsely adduced, it will be the
investigating agency which will suffer loss of face and be forced to
conduct a fresh investigation. Hence, though the offence is one
which affects the administration of justice, it is the investigating
agency, and not the Court, which is the aggrieved party in such
circumstance.
17. In this regard, we consider it beneficial to refer to the
portion of the opinion expressed by the Constitution Bench in
(supra) as to why a narrow interpretation
Iqbal Singh Marwah
of Section 195(1)(b)(ii), CrPC was necessary to avoid
impracticality or injustice in its implementation:
“23…Before filing of the complaint, the court may
hold a preliminary enquiry and record a finding to the
effect that it is expedient in the interests of justice
that enquiry should be made into any of the offences
referred to in Section 195(1)(b). This expediency will
normally be judged by the court by weighing not the
magnitude of injury suffered by the person affected
by such forgery or forged document, but having
regard to the effect or impact, such commission of
offence has upon administration of justice. It is
possible that such forged document or forgery may
cause a very serious or substantial injury to a person
in the sense that it may deprive him of a very
valuable property or status or the like, but such
document may be just a piece of evidence produced
or given in evidence in court, where voluminous
evidence may have been adduced and the effect of
such piece of evidence on the broad concept of
37
administration of justice may be minimal. In such
circumstances, the court may not consider it
expedient in the interest of justice to make a
complaint. The broad view of clause (b)(ii), as
canvassed by learned counsel for the appellants,
would render the victim of such forgery or forged
document remediless. Any interpretation which leads
to a situation where a victim of a crime is rendered
remediless, has to be discarded.
24. There is another consideration which has to be
kept in mind. Subsection (1) of Section 340 CrPC
contemplates holding of a preliminary enquiry.
Normally, a direction for filing of a complaint is not
made during the pendency of the proceeding before
the court and this is done at the stage when the
proceeding is concluded and the final judgment is
rendered. Section 341 provides for an appeal against
an order directing filing of the complaint. The hearing
and ultimate decision of the appeal is bound to take
time. Section 343(2) confers a discretion upon a court
trying the complaint to adjourn the hearing of the
case if it is brought to its notice that an appeal is
pending against the decision arrived at in the judicial
proceeding out of which the matter has arisen. In
view of these provisions, the complaint case may not
proceed at all for decades specially in matters arising
out of civil suits where decisions are challenged in
successive appellate fora which are timeconsuming.
It is also to be noticed that there is no provision of
appeal against an order passed under Section 343(2),
whereby hearing of the case is adjourned until the
decision of the appeal. These provisions show that, in
reality, the procedure prescribed for filing a complaint
by the court is such that it may not fructify in the
actual trial of the offender for an unusually long
period. Delay in prosecution of a guilty person comes
to his advantage as witnesses become reluctant to
give evidence and the evidence gets lost. This
important consideration dissuades us from accepting
38
the broad interpretation sought to be placed upon
clause (b)(ii).
xxx
26. Judicial notice can be taken of the fact that the
courts are normally reluctant to direct filing of a
criminal complaint and such a course is rarely
adopted. It will not be fair and proper to give an
interpretation which leads to a situation where a
person alleged to have committed an offence of the
type enumerated in clause (b)(ii) is either not placed
for trial on account of nonfiling of a complaint or if a
complaint is filed, the same does not come to its
logical end. Judging from such an angle will be in
consonance with the principle that an unworkable or
impracticable result should be avoided…”
(emphasis supplied)
It is possible that Courts may be more proactive in making
complaints under Section 195(1)(b)(i), CrPC upon application
made by the concerned investigative agencies, than in those
preferred by private parties. The former being public authorities
would enjoy more credence in seeking inquiry into their claims.
Therefore, the aforementioned reasons assigned by the
Constitution Bench in Iqbal Singh Marwah for adopting a
narrow construction of Section 195(1)(b)(ii), CrPC may not be
strictly applicable in the present case. However, the general
principles of statutory interpretation laid down by the
39
Constitution Bench should not be disregarded. This is especially
given that the Court did not consider Section 195(1)(b)(ii)
separately but provided a holistic view of the scheme under
Section 195(1)(b).
17.1 Just like a private party who has been a victim of
forgery committed outside the precincts of the Court, the
investigative agency should not be left remediless against persons
who have producing false evidence for the purpose of interfering
with the investigation process. Moreover, the present case
concerns offences alleged to have been committed under the PC
Act. Public interest and the reputation of the State will suffer
significant harm if corrupt public servants are facilitated by third
parties in hiding their assets from scrutiny. Hence any
interpretation which negates against the speedy and effective trial
of such persons must be avoided.
17.2 The application of the bar under Section 195(1)(b)(i),
CrPC to situations such as the present case can lead to two
scenarios. The first is one in which the investigative agency, on
the basis of false/fabricated material drops the case.
Subsequently, it is brought to their notice that the evidence was
40
falsified. Second , the investigative agency at that very stage
suspects that the material produced before them is bogus or
forged in nature. In both scenarios, the Court has not had an
opportunity to consider the allegedly fabricated evidence, as trial
has not yet commenced in respect of the offence. Hence it would
not be possible for the Court to independently ascertain the need
for lodging a complaint under Section 195(1)(b)(i) read with
Section 340, CrPC when the evidence alleged to have been
falsified is not even present on its records. Rather, it is the
investigating agency which is best placed to verify and prove
whether such falsification has taken place, through what means
and for what purpose.
17.3 In case the bar under Section 195(1)(b)(i) is applied to
offences committed during the course of investigation, the Court
may think it fit to wait till the completion of trial to evaluate
whether a complaint should be made or not. Subsequently, the
Court may be of the opinion that in the larger scheme of things
the alleged fabrication of evidence during investigation has not
had any material impact on the trial, and decline to initiate
prosecution for the same. The investigation agency cannot be
41
compelled to take a chance and wait for the trial court to form its
opinion in each and every case. This may give the offender under
Section 193, IPC sufficient time to fabricate more falsehoods to
hide the original crime. Further, irrespective of the potential
impact that such false evidence may have on the opinion formed
by the trial court, the investigating agency has a separate right to
proceed against the accused for attempting to obstruct fair and
transparent probe into a criminal offence. Thus, we are of the
view that it would be impracticable to insist upon lodging of
written complaint by the Court under Section 195(1)(b)(i), CrPC
in such a situation.
18. It must be clarified that the aforementioned opinion
expressed by us is limited to factual situations such as the
present case wherein the fabricated evidence has been detected
prior to commencement of the trial, or without such trial having
been initiated in the first place. The same may not apply for
example, where the investigation agency on the basis of false
evidence given by a third party happens to wrongfully implicate a
person, other than the real perpetrator, for a particular offence.
Subsequently, the Court during the course of trial proceedings
42
may take judicial notice of such defect in the investigation
process and make a complaint under Section 195(1)(b)(i), CrPC.
Since by this stage, the evidence has been produced before the
Court, and contains potential for directly impacting the formation
of the Court’s opinion on the innocence or guilt of the accused
person, invoking the bar under Section 195(1)(b)(i) may not give
rise to much difficulty. However, at this juncture, we decline to
make any conclusive finding on this aspect, as the facts of the
present appeal do not require us to consider the same. It is left
open to future Benches of this Court to settle this issue if it so
arises before them.
19. In this regard, we also find it necessary to distinguish
the threeJudge Bench decision of this Court in Arvindervir
, (1998) 6 SCC 352 from
Singh v. State of Punjab and Another
the present case. In that case it was alleged that the investigating
officers themselves (including the appellant therein) had
abducted and murdered an advocate and his family, and falsely
implicated another person for this offence. The case involving the
falsely accused person had already been committed for trial when
this Court, in writ proceedings initiated by the Punjab and
43
Haryana Bar Association, directed the CBI to conduct an
independent investigation [
Punjab and Haryana High Court
Bar Association, Chandigarh Through its Secretary v. State
, (1994) 1 SCC 616]. Subsequently, after
of Punjab and Others
the CBI submitted its report, it was directed to file the necessary
challan before the trial court [ Punjab & Haryana High Court
, (1996) 4 SCC
Bar Association v. State of Punjab and Others
742)]. The CBI then filed a chargesheet before the designated trial
court in that case under Sections 193 and 211, IPC.
This Court in Arvindervir Singh clarified that challan was
to be filed directly by the CBI only in respect of the offence of
abduction and murder alleged to have been committed by the
appellantaccused. So far as the offence punishable under
Sections 193 and 211, IPC was concerned it was for the
designated trial court to make a written complaint to a Magistrate
having jurisdiction. However, the threeJudge Bench did not
discuss the scope and ambit of “ in relation to ” under Section
195(1)(b)(i), CrPC. Moreover, since this decision was rendered
prior to the Constitution Bench decision in Iqbal Singh Marwah
(supra), the threeJudge Bench did not have the benefit of
44
referring to the observations made in that case. Hence the
decision in will not have any application to
Arvindervir Singh
the case at hand as it involved a completely different set of
factual and legal issues.
III. Whether “ stage of a judicial proceeding ” under
Explanation 2 to Section 193, IPC is synonymous with
“ proceeding in any court ” under Section 195(1)(b)(i), CrPC?
20. The last point that remains to be considered is the effect
of Explanation 2 to Section 193, IPC which deems an
investigation preliminary to a proceeding before a Court of
Justice to be a “ stage of a judicial proceeding ” for the purposes of
the Section. Such deeming provision applies even though that
investigation may not take place before a Court of Justice. This
gives rise to the question of whether an offence committed during
the investigation, which is a “stage of a judicial proceeding”
under Explanation 2, Section 193, IPC, would be an offence
committed “in relation to any proceeding in any Court” under
Section 195(1)(b)(i), CrPC.
45
20.1 The purpose of Explanation 2 to Section 193, IPC is
evidently to ensure that a person who fabricates false evidence
before an investigating or inquiring authority prior to the trial of
the case does not escape penalty. This encompasses all nature of
proceedings, whether civil or criminal. However, whether the
commission of such offence would require the complaint of a
Court under Section 195(1)(b)(i) would depend upon the authority
before whom such false evidence is given. For example, if a
person gives false evidence in an inquiry before the Magistrate
under Section 200, CrPC, that would undoubtedly be an offence
committed before a Court under Section 195(1)(b)(i), CrPC.
However, this would not be the case where false evidence is led
before an investigating officer prior to the Court having taken
cognizance of the offence or the case being committed for trial.
20.2 The object and purpose of Section 195(1)(b), CrPC must
be borne in mind whilst determining whether the fabrication of
false evidence during a stage of a judicial proceeding amounts to
having made such fabrication in relation to a proceeding before
the Court. At the cost of repetition, it must be emphasized that
Section 195(1)(b) is meant to restrict the right to make complaint
46
in respect of certain offences to public servants, or to the relevant
Court, as they are considered to be the only party who is directly
aggrieved or impacted by those offences. Furthermore, for the
purpose of Section 195(1)(b)(i), CrPC, there must be an intention
on part of the alleged offender to directly mislead the Court into
forming a certain opinion by commission of offence under Section
193, IPC. Though a criminal investigation is certainly a stage of a
judicial proceeding insofar as it may culminate in issue of
process and trial against the accused, it would not be a
proceeding in relation to a certain Court under Section 195(1)(b)
(i), CrPC before the Court has even taken judicial notice of such
investigation. The difference between a “stage” of a judicial
proceeding and the judicial proceeding itself must be emphasized
in this regard.
21. We find it necessary to distinguish certain decisions of
this Court which have adjudicated upon the correlation between
the words “judicial proceeding” and “proceeding in any court” for
further clarifying our position on this point. In
Lalji Haridas v.
State of Maharashtra , (1964) 6 SCR 700, a Constitution Bench
of this Court considered whether proceedings before an Income
47
Tax Officer under the Indian Income Tax Act, 1922 would be
proceedings in any court under Section 195(1)(b) of the 1898
Code, which was the corresponding section in that Code to
Section 195(1)(b)(i), CrPC. Section 37(4) of the 1922 Act provided
that proceedings before the Income Tax authority shall be
deemed to be “judicial proceedings” (and not merely a stage of
such proceedings) under Section 193, IPC. It was in this context
that the majority of the Constitution Bench (K.C. Dasgupta J.,
dissenting) held that the expressions “judicial proceeding” under
the 1922 Act and “proceeding in any court” under Section 195(1)
(b), 1898 Code are synonymous. Therefore, a private complaint
would not be maintainable in respect of a false statement given
on oath before the Income Tax Officer.
21.1 In Babita Lila and Another v. Union of India , (2016)
9 SCC 647, a Division Bench of this Court similarly considered
the jurisdiction of the Deputy Director of Income Tax to make a
complaint under Section 195(1)(b), CrPC in respect of false
statements given on oath during a search operation conducted
under the Income Tax Act, 1961. The discussion in this case was
primarily concerned with whether the Deputy Director would be
48
the competent appellate authority authorized to make a
complaint under Section 195(4), CrPC. However, the Division
Bench, referring to , made an ancillary observation
Lalji Haridas
that such search operation is deemed to be a “judicial
proceeding” under Section 193, CrPC, and that the relevant
Income Tax authority would be deemed to be a civil court for the
purpose of Section 195, CrPC. This is as per the express
provision made to the effect under Section 196 of the 1961 Act.
21.2 In
Chandrapal Singh and Others v. Maharaj Singh
and Another , (1982) 1 SCC 466, a threeJudge Bench of this
Court was faced with the issue of whether 195(1)(b)(i), CrPC
would bar a complaint under Sections 193, 199 and 201 of the
IPC alleging making of false statements in affidavit before the
Rent Control Officer under the U.P, Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972. Similar to the
aforementioned income tax statutes, Section 34(2) of the 1972
Act provided that the District Magistrate or the prescribed
authority holding an inquiry under the Act shall be deemed to be
a Civil Court within the meaning of Sections 480 and 482 of the
49
1898 Code. Moreover, that proceedings before such authority
shall be judicial proceedings under Section 193, IPC.
The threeJudge Bench noted that under the 1972 Act, the
Rent Control Officer was authorized to exercise the powers and
functions of the District Magistrate. Hence, in view of the specific
provision made under Section 34(2) of the 1972 Act, the Rent
Control Officer would also be deemed to be a civil court and the
proceedings before him would be judicial proceedings. Therefore,
if any false evidence was given during the course of such
proceedings, only the Rent Control Officer was authorized to
make complaint of the same under Section 195(1)(b)(i), CrPC.
Even otherwise, on the facts of the case, the threeJudge Bench
found that abuse of criminal process had taken place and
observed that “ chagrined and frustrated litigants should not be
permitted to give vent to their frustration by cheaply invoking the
jurisdiction of the criminal court ” ( , (supra),
Chandrapal Singh
paragraph 14).
21.3 It can be seen from the above discussion that this
Court has, in some instances, opined that where the law deems
proceedings before a certain authority to be “judicial
50
proceedings”, the same would be considered as “proceedings in
any court” under Section 195(1)(b)(i), CrPC. Therefore, if the
offence under Section 193, IPC is committed before such an
authority, the written complaint of that authority is mandatorily
required for trial of the offence. However, the facts of the
decisions in Lalji Haridas (supra), Babita Lila (supra) and
(supra), are clearly distinguishable from the
Chandrapal Singh
present appeal as they all involve 1) False statements made on
oath or in affidavits, 2) in a judicial proceeding and 3) before an
authority which is expressly deemed under law to be a “court”.
None of the aforequoted cases were concerned with fabrication of
evidence before an investigating authority under a penal statute.
22. In the present case, pursuant to recovering the seized
currency from the Appellant’s house on 24.01.2001, the
Respondent initiated investigation under Section 13(2) read with
Section 13(1)(e), PC Act against him. Accused Nos. 2 and 3, at the
behest of the Appellant, wrote letter dated 4.02.2002 to the
Superintendent of Police, CBI stating that the seized currency
was held by the Appellant as part of an escrow arrangement
amongst the parties. Hence, they sought that the money should
51
be paid back to Accused No. 2. They additionally produced a false
sale deed dated 24.01.2001 and certain books of account in
support of their claim. There was no involvement of the Trial
Court at this stage in as much as the letter dated 4.02.2002 and
the sale deed were obviously intended to convince the
investigation agency that the Appellant had not accumulated
disproportionate financial assets. Had the Respondent accepted
the veracity of the contents of this letter, they would not only
have dropped the investigation against Appellant/Accused No. 1
but also wrongfully returned the seized currency under the
mistaken impression that it was the property of Accused No. 2.
The Accused No. 2 would have then facilitated the return of the
Appellant’s illgotten gains back to his custody. The authorities
would be none the wiser and the loss of Rs. 80 lakhs from the
exchequer would have flown under the radar.
22.1 Therefore in the present case, it is not the Trial Court
but the Respondent authority/agency which has been directly
impacted due to fabrication of evidence by the
Appellants/accused. The Appellants’ intention was not to mislead
the Trial Court, at least not at the first instance. Rather, their
52
goal was to ensure that the Appellant/Accused No. 1 was cleared
of wrongdoing at the stage of investigation itself. It was after
being charged under Section 193, IPC, that the
Appellants/accused reiterated the fictitious escrow arrangement
story before the Trial Court so as to prove their innocence. Hence
it cannot be said that the offence under Sections 120B read with
193, IPC was committed by the Appellants “ in relation to ” a
proceeding in a court under Section 195(1)(b)(i), CrPC.
22.2 Section 2(i), CrPC defines “ judicial proceeding ” as
including any proceeding in the course of which evidence is or
may be legally taken by oath. The investigation under the PC Act
was admittedly a stage of a judicial proceeding by virtue of
Explanation 2 to Section 193, IPC. However, neither was the
fabricated evidence in the present case given on oath before the
investigating officer, nor is the investigating authority under the
PC Act deemed to be a “court” for the purpose of Section 195(1)
(b), CrPC. Hence, the decisions in Lalji Haridas (supra) and
Chandrapal Singh (supra) will have no applicability to the
present case. Thus, it can be concluded that the investigation
conducted by the Respondent under the PC Act cannot be
53
equated with a proceeding in a court of law under Section 195(1)
(b)(i), CrPC, though it is deemed to be a stage of a judicial
proceeding under Section 193, IPC.
22.3 Had this been a case wherein the Respondent had not
developed any suspicion against Accused Nos. 2 and 3, and the
Trial Court had subsequently discovered the subterfuge caused
by them, we may have taken a different view. As we have noted in
paragraph 18 (supra), where the fabrication of evidence has
escaped the scrutiny of the investigating agency, and the case is
subsequently brought to trial, such evidence would have direct
bearing on the trial court’s opinion and hence the bar under
Section 195(1)(b)(i), CrPC may be applicable. However, in the
present case, the investigating agency has been sagacious
enough to detect the commission of offence under Section 193,
IPC at the preliminary stage. Therefore, as stated by us in
paragraph 17.3 (supra), it would be unjust and impracticable to
insist upon the requirement of an independent inquiry and
written complaint by the Trial Court in such a scenario.
23. Thus, the questions of law stated in paragraph 6 (supra)
stand answered against the Appellants/accused. Even on merits,
54
we do not find any valid reason to interfere with the concurrent
findings of the Trial Court and the High Court. The High Court
has rightly observed that the Appellant/Accused No. 1 had not
raised the defence of holding the money in escrow for Accused
Nos. 2 and 3 at the time of search conducted at his house on
24.01.2001. The supposed agreement of sale was also not
produced. This defence was raised by Accused Nos. 2 and 3 at a
highly belated stage on 4.02.2002, almost a year after the
recovery of the seized currency, though the Appellant had
corresponded with Accused No. 2 in MayJune, 2001. It is
improbable in the ordinary course of conduct that a person
would wait so long to claim an amount of approximately Rs. 80
lakhs which was required for completion of sale transaction. The
stamp paper on which the sale deed was made was also proved to
be illegal. Hence it is apparent that the Appellants/accused
entered into an elaborate conspiracy and attempted to create a
false circumstance of escrow transaction for the purpose of
shielding Appellant/Accused No. 1 from prosecution. In fact, the
High Court has shown great lenity by reducing the sentences
awarded to the Appellants/accused in view of their advanced age
55
and delay in completion of the trial. In view of the gravity of the
offence, no further benefit can be granted to them in this regard.
Conclusions
24. The questions of law formulated in paragraph 6
(supra) are answered as follows:
Section 195(1)(b)(i), CrPC will not bar
prosecution by the investigating agency for offence
punishable under Section 193, IPC, which is
committed during the stage of investigation. This is
provided that the investigating agency has lodged
complaint or registered the case under Section 193,
IPC prior to commencement of proceedings and
production of such evidence before the trial court.
In such circumstance, the same would not be
considered an offence committed in, or in relation
to, any proceeding in any Court for the purpose of
| Section 195(1)(b)(i), CrPC. |
|---|
56
24.1 The appeals are accordingly dismissed both on law and
on merits. The sentence awarded by the High Court shall be set
off against the period of imprisonment, if any, already undergone
by the Appellants. The Appellants are directed to surrender
within two weeks for serving out the rest of their sentence, if they
are not already in custody. The Registry is further directed to
expeditiously release the amount of fine, if any, deposited before
this Court. If any arrears of fine are remaining, the Appellants
shall pay the same within a period of not more than four weeks
from the date of this order.
………………………………………….J.
(MOHAN M. SHANTANAGOUDAR)
………………………………………....J.
(VINEET SARAN)
NEW DELHI;
MARCH 12, 2021
57