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TMI Blog2021 (4) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... action is liable to be deprecated, that does not warrant dismissal of the writ petition. The reason behind bringing certain specified offences under the purview of Section 195 of the Cr.P.C is because the commission of those offences have direct impact on an ongoing judicial proceeding and thereby, on the administration of justice. Section 193 of the IPC being one such offence, the prohibition under Section 195 of the Cr.P.C will apply. Whether the prohibition under Section 195(1)(b)(i) of Cr.P.C is from taking cognizance only or whether the Police is interdicted from conducting investigation of the offences enumerated in the section? - HELD THAT:- In Nirmaljit Singh Hoon v. State of W.B., [ 1972 (9) TMI 147 - SUPREME COURT] , the offences were under Sections 463, 471, 475, 476 of the IPC and hence the Apex Court held that police authorities have a statutory right under Sections 154 and 156 of the Code to investigate into a cognizable offence, without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561-A of the Code (Section 482 of the new Code) to interfere with the exercise of that statutory power - The Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SSAIN (SR.) FOR THE RESPONDENT : R1-2 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER R1-2 BY SRI.V.MANU, SENIOR GOVT. PLEADER R1-2 BY SRI.P.NARAYANAN, SENIOR GOVT. PLEADER R4 BY ADV. T.A.UNNIKRISHNAN, CGC R4-5 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA FOR CBI, REPRESENTED BY ADV.SRI.SUVIN R.MENON R4 BY ADDL.SOLICITOR GENERAL. K.M.NATARAJ JUDGMENT W.P(C).No.7641 of 2021 The instant writ petition is filed by the Deputy Director, Enforcement Directorate, Kochi Zonal Office, aggrieved by the registration of Exhibit P1 FIR by the Crime Branch wing of the State Police. The essential facts leading to the writ petition, are as under: On 06.07.2020, O.R.No.7 of 2020 was registered at the Customs Commissionerate (Preventive), Kochi, consequent to seizure of 30 Kgs of gold worth ₹ 14.82 Crores at the Thiruvananthapuram International Airport. The seizure was effected while the gold was being smuggled, camouflaging it as diplomatic baggage to the UAE Consulate. During the course of investigation it was revealed that the accused had committed offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA) also. This resulted in the National Investigation Agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences under Sections 116, 120B, 167, 192, 193 and 195A of IPC. 3. The challenge against registration of the FIR and legality of the Crime Branch investigation is led by Sri.Tushar Mehta, learned Solicitor General of India, supported by Sri. S.V.Raju and Sri.K.M.Nataraj, learned Additional Solicitors General appearing for the Enforcement Directorate and Central Bureau of Investigation. Sri. Harin P. Raval, learned Senior Counsel appearing for the State of Kerala countered their contentions and justified the action of the Crime Branch. 4. According to the learned Solicitor General, registration of the crime by the Crime Branch wing of the State Police, against the officers of a Central Agency alleging flaws and excesses during their investigation, militates against the very concept of cooperative federalism enshrined in the Constitution. Further, such action, if permitted, will impair the conduct of free, fair and impartial investigation by the Central Agencies. It is contended that the Special Court having taken cognizance of the offences, based on the complaint filed by the ED, only the Special Court alone empowered to consider the complaint of the accused and that, parallel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Minister of Kerala or his wife had called her personally and whether they were close to her, the second accused had answered that they were neither close to her nor had they called her personally and that all her conversations with the Chief Minister had been for official purposes only. It is contended that if the intention of the investigating officer was to implicate the Chief Minister, that answer would not have been recorded. According to the learned Counsel, falsity of the allegations is evident from the fact that, in spite of the repeated opportunities available to appraise the jurisdictional court of the attempt to coerce her, the second accused had never raised such a complaint. Reference is made to Exhibits P15 and P16 remand orders dated 11.08.2020 and 14.08.2020, wherein the Special Judge, after interacting with accused Nos.1, 2 and 4, had observed that the accused appeared to be in sound health and mind and had no complaints. Particular emphasis is laid on paragraph 7 of Exhibit P17 order, wherein the learned counsel for Smt. Swapna Suresh had alleged that his client was tortured during questioning by the Enforcement Officials, without the presence of a woman offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the learned Senior Counsel, the attempt of the learned Solicitor General and other counsel is to divert the attention of the Court from the cardinal issue, by raising a rhetorical contention that investigation by the Crime Branch would impinge the investigation of the ED case and the authenticity of the statements recorded under Section 50 of the PMLA. It is contended that the court should see through the smoke screen attempted to be created and address the real issue involved. The real issue being the authority, or rather the duty, of the Police to register a crime when commission of cognizable offences are brought to its notice. In support of this argument, reliance is placed on the decision of the Privy Council in King-Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18] and of the Supreme Court in Abhinandan Jha and Others v. Dinesh Mishra [(1967) 3 SCR 668], State of Bihar and Another v. J.A.C.Saldanha and Others [(1980) 1 SCC 554] and the Constitutional Bench decision in Lalita Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1]. It is contended that the bar under Section 195 of the Cr.P.C is only against taking cognizance and does not interdict investigation by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch sought permission to question and record the statement of Sri. Sandeep Nair from the Central Prison, Thiruvananthapuram and the request was allowed by the Special Court as per Exhibit P3 order. The challenge in this writ petition is against Exhibit P1 FIR and Exhibit P3 order and is founded on the same grounds as in W.P(C).No.7641 of 2021. The additional ground of challenge is that registration of a second crime, based on the very same allegations as in the first crime, is barred. In support of this challenge, reference is made to the statement in the first crime (Crime No. 94 of 2021), of another accused in the case, Sri.Sandeep Nair, having also written a similar complaint to the District and Sessions Judge, Ernakulam alleging threat and coercion to give false evidence against the Chief Minister and that the entire matter require an in- depth investigation by registering an FIR. Countering the challenge, learned counsel for the respondent State highlighted the marked differences between the incidents and the allegations in the two crimes, which, according to the learned counsel, can, by any stretch of imagination, be treated to be the same or even similar. Elaborate legal cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No Court shall take cognizance-- (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (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 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 sub-clause (i) or sub-clause (ii), except on the complaint in writin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, in other words the administration of public justice, which is the direct and immediate object or victim of those offence and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. 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 designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 CrPC, of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Code) to interfere with the exercise of that statutory power. 15. In State of Punjab v. Raj Singh [(1998) 2 SCC 391], the appeal had arisen from the order by which the High Court had quashed an FIR, registered during the course of a civil suit, alleging commission of offences under Sections 419, 420, 467 and 468 of the IPC. The FIR was quashed on the ground that Section 195(1)(b)(ii) of the Cr.PC prohibited entertainment of and investigation into the offences by the police. While interfering with that judgment the Honourable Supreme Court held that from a plain reading of Section 195 Cr.PC, it is manifest that the prohibition comes into operation only at the stage when the court intends to take cognizance of an offence under Section 190(1) Cr.PC, and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. The Apex Court further held that the statutory power of the police to investigate under the Code is in no way controlled or circumscribed by Section 195 of the Cr.PC. That, upon the charge-sheet (challan), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all under Section 195(1)(b)(i) CrPC refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) CrPC, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision has no application to the facts of the present case. 24. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) CrPC as the offence is punishable under Section 193 IPC. Therefore, the Magistrate has erred in taking cognizance of the offence on the basis of a private complaint. The High Court, in our view, has rightly set aside the order of the Magistrate. However, having regard to the facts and circumstances of the case, we deem it proper to set aside the costs imposed by the High Court. 17. The Honourable Supreme Court had occasion to consider this question in Bandekar Brothers Pvt. Ltd and Anr v Prasad Vasudev Keni etc. [2020 SCC OnLine SC 707], the relevant portion of which is extracted hereunder; 19. At this stage, it is important to understand the difference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 19. It may be pertinent to note that as far as the instant cases are concerned, the Special Court has taken cognizance of the offences under the PMLA on 12.10.2020. As such, recording of the accused's statements would undoubtedly fall within the import of the words in relation to any proceeding in any court mentioned in Section 195(1)(b) (i). 20. The next question to be considered is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. 21. The above discussion leads to the only possible conclusion of the bar under Section 195(1)(b)(i) Cr.P.C being applicable to the offences mentioned in the two FIRs, the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that, if such attempts had fructified, it would have definitely sullied the proceedings of the court and impacted administration of justice. Therefore, even though the other offences alleged are under Section 167 and 195A of IPC, they are undoubtedly interwoven with and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.PC. Adopting the same reasoning, it has to be held that the offence under Section 193 IPC being a non-cognisable offence, the Crime Branch could not have registered the crimes without following the procedure under Section 155(1) Cr.P.C, despite the deeming clause under Section 155(4). H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wording of Section 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed, covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Judge. The point that emerges is that, either on being alerted through an application or on getting information regarding the commission of the offence under Section 195(1)(b), the jurisdictional court can conduct a preliminary enquiry and form the opinion whether it is expedient to conduct an enquiry. Further, if convinced a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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