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TMI Blog2021 (4) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 13(1)(e), PC Act against the Appellant. Therefore Section 193, IPC is squarely applicable to the allegations at hand. 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? - HELD THAT:- The presence of in relation to under Section 195(1)(b)(i) means that Iqbal Singh Marwah would not have blanket application to every case where a complaint is lodged in respect of an offence specified under that Section. However, on the facts of Bandekar Brothers, this was not a situation in which the offence 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 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 cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. The questions of law stated in paragraph 6 (supra)stand answered against the Appellants/accused. Even on merits, 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 - 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/ACU II 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 ₹ 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 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 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 195(1)(b)(i) of the CrPC as well. She has also sought to distinguish Bandekar Brothers (supra) and other 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 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, orpunishable 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 anyC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 havingjurisdiction; (d) take sufficient security for the appearance for theaccused before such Magistrate, or if the alleged offence is non bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidencebefore 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 Singh, (2020) 12 SCC 96, has referred the question of whether it is mandatory for the Court to conduct a preliminary inquiry and provide opportunity of hearing to the would be accused under Section 340, CrPC prior to making a complaint under Section 195, for consideration of a larger Bench. Therefore, we shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 sub questions: 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? I. Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment produced in any long drawn litigation which was either instituted by himself or somebody else who can be influenced by him and thereby pre empt 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 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 inSection 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution 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 beforethe Court. The same would not have a reasonably close nexus with the court proceedings. 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 tender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Emperor v. Kushal Pal Singh [AIR 1931 All 443 : 32 Cri LJ 1105 (SB)] considered the scope of the aforesaid provision an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desirability of complaining against the guilty party. The private party who might ultimately suffer can persuade the civil court to file complaint 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 120 B IPC alleging that the appellants had conspired and fabricated an agreement dated 26 7 1978 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 27 9 1983. The appellants thereafter filed a civil suit on 9 2 1984 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 Patel Laljibhai. Reference was then made to Sanmukhsingh v. R. [AIR 1950 PC 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 Surjit Singh, this Court had held on the facts of that 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 three Judge Bench in Patel Laljibhai Somabhai (supra) on Sections 192(b) and 192(c) of the Code of Criminal Procedure, 1898 ( 1898 Code ) which corresponded to Section 192(1)(b)(i) and (ii) of the present CrPC respectively. This Court in Patel Laljibhai Somabhai had noted that even under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 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 Iqbal Singh Marwah would not benefit the appellants in that 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 729 and Narendra Kumar Srivastava v. State of Bihar and Others, (2019) 3 SCC 318, which were the decisions 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. (emphasis supplied) Therefore, this Court expressly observed in Kailash Mangal that since the document was filed during the course of a proceeding which was already pending before the court, the offence could be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Bandekar Brothers (supra), 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. Sub section (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 time cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 distinguishthe three Judge Bench decision of this Court in Arvindervir Singh v. State of Punjab and Another, (1998) 6 SCC 352 from 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 Haryana Bar Association, directed the CBI to conduct an independent investigation [Punjab and Haryana High Court Bar Association, Chandigarh Through its Secretary v. State of Punjab and Others, (1994) 1 SCC 616]. Subsequently, after the CBI submitted its report, it was directed to file the necessary challan before the trial court [Punjab Haryana High Court Bar Association v. State of Punjab and Others, (1996) 4 SCC 742)]. The CBI th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 196 of the 1961 Act. 21.2 In Chandrapal Singh and Others v. Maharaj Singh and Another, (1982) 1 SCC 466, a three Judge 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 1898 Code. Moreover, that proceedings before such authority shall be judicial proceedings under Section 193, IPC. The three Judge 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 ill gotten gains back to his custody. The authorities would be none the wiser and the loss of ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused 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 May June, 2001. It is improbable in the ordinary course of conduct that a person would wait so long to claim an amount of approximately ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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