Perumal Vs. Janaki
EmailAppeal: Criminal Appeal No. 169 of 2014
[Arising out of Special Leave Petition (Criminal) No. 1221 of 2012]
[Arising out of Special Leave Petition (Criminal) No. 1221 of 2012]
Petitioner: Perumal
Respondent: Janaki
Apeal: Criminal Appeal No. 169 of 2014
[Arising out of Special Leave Petition (Criminal) No. 1221 of 2012]
[Arising out of Special Leave Petition (Criminal) No. 1221 of 2012]
Judges: P. Sathasivam, CJI. & J. Chelameswar, J.
Date of Judgment: Jan 20, 2014
Head Note:
CRIMINAL LAWS
Criminal Procedure Code, 1973
Sections 195, 340, 200 – Penal Code, 1860, Section 193 – Private complaint – Maintainability – Bar of jurisdiction – Prosecution of complainant for offences under Sections 417, 506(1) IPC – Respondent, a sub-Inspector, filed charge sheet with assertion that complainant was responsible for pregnancy of woman (complainant in that charge sheet) – Medical opinion available even before filing of charge sheet that woman was not pregnant, but still charge sheet filed – Ended in acquittal – Complainant filed complaint – Dismissal on grounds of bar of Section 195, where complaint has to be made by Court concerned for offence under Section 193 IPC. Held that a police officer filing charge sheet is not making any statement on oath, nor he/she is bound by any express provision of law to state truth. However, Section 211 IPC is attracted in the facts of this case as Sub-Inspector (Respondent) filed charge sheet without lawful and just ground. However, offence under Section 211 is also mentioned in Section 195 Cr.P.C. and no complaint can be entertained unless it is made by Court. Complainant did not apply to Court concerned under Section 340 Cr.P.C., to ‘make a complaint’.
Criminal Procedure Code, 1973
Sections 195, 340, 200 – Penal Code, 1860, Section 193 – Private complaint – Maintainability – Bar of jurisdiction – Prosecution of complainant for offences under Sections 417, 506(1) IPC – Respondent, a sub-Inspector, filed charge sheet with assertion that complainant was responsible for pregnancy of woman (complainant in that charge sheet) – Medical opinion available even before filing of charge sheet that woman was not pregnant, but still charge sheet filed – Ended in acquittal – Complainant filed complaint – Dismissal on grounds of bar of Section 195, where complaint has to be made by Court concerned for offence under Section 193 IPC. Held that a police officer filing charge sheet is not making any statement on oath, nor he/she is bound by any express provision of law to state truth. However, Section 211 IPC is attracted in the facts of this case as Sub-Inspector (Respondent) filed charge sheet without lawful and just ground. However, offence under Section 211 is also mentioned in Section 195 Cr.P.C. and no complaint can be entertained unless it is made by Court. Complainant did not apply to Court concerned under Section 340 Cr.P.C., to ‘make a complaint’.
Sections 195(4), 340, 200 – Penal Code, 1860, Section 193 – Constitution of India, 1950, Article 227 – Private complaint – Maintainability – Bar of jurisdiction – Private complaint dismissed by Magistrate as barred under Sections 195 and 340 Cr.P.C. – Matter taken upto High Court – Orders of Magistrate affirmed – If justified. Held that High Court being a superior Court and a Constitutional Court, can exercise powers under Section 195(1) as Court of Magistrate is subordinate to it. High Court ought to have exercised its jurisdiction. Matter remitted to High Court. Iqbal Singh Marwah’s [JT 2005 (3) SC 195] case relied upon.
Held:
The indisputable facts, in our opinion, prima facie may not constitute an offence under section 193 IPC but may constitute an offence under section 211 IPC. (Para 15)
A police officer filing a charge-sheet does not make any statement on oath nor is bound by any express provision of law to state the truth though in our opinion being a public servant is obliged to act in good faith. Whether the statement made by the police officer in a charge-sheet amounts to a declaration upon any subject within the meaning of the clause being bound by law to make a declaration upon any subject occurring under section 191 of the IPC is a question which requires further examination. (Para 17)
Section 211 of the IPC deals with an offence of instituting or causing to be instituted any criminal proceeding or falsely charging any person of having committed an offence even when there is no just or lawful ground for such proceeding to the knowledge of the person instituting or causing the institution of the criminal proceedings. (Para 18)
In the light of the language of section 195 Cr.P.C. we do not find fault with the conclusion of the learned Magistrate in dismissing the complaint of the appellant herein for the reason that the complaint is not filed by the person contemplated under section 195 Cr.P.C. It may be mentioned here that as a matter of fact the Court before which the instant complaint was lodged is not the same Court before which the appellant herein was prosecuted by the respondent. (Para 20)
The appellant herein did not make an application to the judicial magistrate No.1, Pollachi under section 340 to make a complaint against the respondent herein nor the said magistrate suo moto made a complaint. Therefore, the learned judicial magistrate No.2 before whom the private complaint is made by the appellant had no option but to dismiss the complaint. (Para 22)
The High Court, in our view, is not justified in confining itself to the examination of the correctness of the order of the magistrate dismissing the said private complaint. (Para 23)
Section 195(4), Cr.P.C. creates a legal fiction whereby it is declared that the original court is subordinate to that court to which appeals ordinarily lie from the judgments or orders of the original court. (hereinafter referred to as the appellate court) In our view, such a fiction must be understood in the context of Article 227 of the Constitution of India and Section 10(1) and 15(1) of Cr.P.C. Article 227 confers the power of superintendence on a High Court over all courts and tribunals functioning within the territories in relation to which a High Court exercises jurisdiction. (Para 24)
Section 195(4) deals with the authority of the superior courts in the context of taking cognizance of various offences mentioned in Section 195(1). Such offences are relatable to civil, criminal and revenue courts etc. Each one of the streams of these courts may have their administrative hierarchy depending upon under the law by which such courts are brought into existence. It is also well known that certain courts have appellate jurisdiction while certain courts only have original jurisdiction. Appellate jurisdiction is the creature of statute and depending upon the scheme of a particular statute, the forum of appeal varies. (Para 24)
High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo moto whenever the interests of justice demand. (Para 25)
In the case on hand, when the appellant alleges that he had been prosecuted on the basis of a palpably false statement coupled with the further allegation in his complaint that the respondent did so for extraneous considerations, we are of the opinion that it is an appropriate case where the High Court ought to have exercised the jurisdiction under Section 195 Cr.P.C.. The allegation such as the one made by the complainant against the respondent is not uncommon. (Para 28)
Cases Reffered:
1. Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. [JT 2005 (3) SC 195] (relied upon) (Para 27)
2. Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors. [1985 (Suppl.) SCC 144] (Para 28)
JUDGEMENT:
Chelameswar, J.
1. Leave granted.
2. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the High Court of Madras, the unsuccessful petitioner therein preferred the instant appeal.
3. A petition in C.M.P. No.4561 of 2010 (private complaint) under section 200 of the Code of Criminal Procedure, 1973 (hereinafter for short referred to as the Cr.P.C.) filed by the appellant herein against the respondent came to be dismissed by the Judicial Magistrate No.2 at Pollachi by his judgment dated 31st August 2010. Challenging the same, the above-mentioned Crl. R.C. was filed.
4. The factual background of the case is as follows:
5. The respondent was working as a Sub-Inspector in an All-Women Police Station, Pollachi at the relevant point of time. On 18th May 2008, one Nagal reported to the respondent that the appellant herein had cheated her. The respondent registered Crime No.18/08 under sections 417 and 506(i) of the Indian Penal Code (hereinafter for short referred to as the IPC). Eventually, the respondent filed a charge-sheet, the relevant portion of which reads as follows:
On 26.12.07, that the accused called upon the de-facto complainant for an outing and while going in the night at around 10.00 via Vadugapalayam Ittori route the accused enticed the de-facto complainant of marrying her and had sexual interaction several times in the nearby jungle and on account of which the complainant became pregnant and when she asked the accused to marry him he threatened the complainant of killing her if she disclosed the above fact to anybody.
Hence the accused committed an offence punishable under Sections 417, 506 (i) of IPC.
[emphasis supplied]
6. The appellant was tried for the offences mentioned above by the learned Judicial Magistrate No.1, Pollachi. The learned Judicial Magistrate by his judgment dated 15th March 2010 acquitted the appellant of both the charges.
7. It appears that the said judgment has become final.
8. In the light of the acquittal, the appellant filed a complaint (C.M.P. No.4561 of 2010) under section 190 of the Cr.P.C. on the file of the Judicial Magistrate No.2 at Pollachi praying that the respondent be tried for an offence under section 193 of the IPC. The said complaint came to be dismissed by an order dated 31st August 2010 on the ground that in view of sections 195 and 340 of the Cr.P.C. the complaint of the appellant herein is not maintainable.
9. Aggrieved by the said dismissal, the appellant herein unsuccessfully carried the matter to the High Court. Hence the present appeal.
10. The case of the appellant herein in his complaint is that though Nagal alleged an offence of cheating against the appellant which led to the pregnancy of Nagal, such an offence was not proved against him. Upon the registration of Crime No.18/08, Nagal was subjected to medical examination. She was not found to be pregnant. Dr. Geetha, who examined Nagal, categorically opined that Nagal was not found to be pregnant on the date of examination which took place six days after the registration of the FIR. In spite of the definite medical opinion that Nagal was not pregnant, the respondent chose to file a charge-sheet with an allegation that Nagal became pregnant. Therefore, according to the appellant, the charge-sheet was filed with a deliberate false statement by the respondent herein. The appellant, therefore, prayed in his complaint as follows;
It is, therefore, prayed that this Honble Court may be pleased to take this complaint on file, try the accused U/s. 193 IPC for deliberately giving false evidence in the Court as against the complainant, and punish the accused and pass such further or other orders as this Honble court deems fit and proper.
11. The learned Magistrate dismissed the complaint on the ground that section 195 of the Cr.P.C. bars criminal courts to take cognizance of an offence under section 193 of the IPC except on the complaint in writing of that Court or an officer of that Court in relation to any proceeding in the Court where the offence under section 193 is said to have been committed and a private complaint such as the one on hand is not maintainable.
12. The High Court declined to interfere with the matter in exercise of its revisional jurisdiction. The operative portion of the order under challenge reads as follows:
3. This court is in agreement with the conclusion of the court below in dismissing the complaint. The complaint provided very little to take action upon, particularly, where this court finds that the respondent had not in any manner tampered with the medical record so as to mulct the petitioner with criminal liability. The wording in the final report informing of the de facto complainant having been pregnant can in the facts and circumstances of the case, be seen only as a mistake.
4. In the result, the criminal revision stands dismissed.
13. We regret to place on record that at every stage of this matter the inquiry was misdirected.
14. The facts relevant for the issue on hand are that:
(1) The appellant was prosecuted for the offences under sections 417 and 506 (i) IPC. (The factual allegations forming the basis of such a prosecution are already noted earlier).
(2) The respondent filed a charge-sheet with an assertion that the appellant was responsible for pregnancy of Nagal.
(3) Even before the filing of the charge-sheet, a definite medical opinion was available to the respondent (secured during the course of the investigation of the offence alleged against the appellant) to the effect that Nagal was not pregnant.
(4) Still the respondent chose to assert in the charge-sheet that Nagal was pregnant.
(5) The prosecution against the appellant ended in acquittal.
15. The above-mentioned indisputable facts, in our opinion, prima facie may not constitute an offence under section 193 IPC but may constitute an offence under section 211 IPC. We say prima facie only for the reason this aspect has not been examined at any stage in the case nor any submission is made before us on either side but we cannot help taking notice of the basic facts and the legal position.
16. The offence under section 193 [1*] IPC is an act of giving false evidence or fabricating false evidence in a judicial proceeding. The act of giving false evidence is defined under section 191 IPC as follows:
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1* Section 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 extended to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extended to three years, and shall also be liable to fine.
Explanation 1.A trial before a Court-martial; is a judicial proceeding.
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.
191. Giving false evidence. Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
16.1. It can be seen from the definition that to constitute an act of giving false evidence, a person must make a statement which is either false to the knowledge or belief of the maker or which the maker does not believe to be true. Further, it requires that such a statement is made by a person (1) who is legally bound by an oath; (2) by an express provision of law to state the truth; or (3) being bound by law to make a declaration upon any subject.
17. A police officer filing a charge-sheet does not make any statement on oath nor is bound by any express provision of law to state the truth though in our opinion being a public servant is obliged to act in good faith. Whether the statement made by the police officer in a charge-sheet amounts to a declaration upon any subject within the meaning of the clause being bound by law to make a declaration upon any subject occurring under section 191 of the IPC is a question which requires further examination.
18. On the other hand, section 211 of the IPC deals with an offence of instituting or causing to be instituted any criminal proceeding or falsely charging any person of having committed an offence even when there is no just or lawful ground for such proceeding to the knowledge of the person instituting or causing the institution of the criminal proceedings.
19. Irrespective of the fact whether the offence disclosed by the complaint of the appellant herein is an offence falling either under section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares that no Court shall take cognizance of either of the above-mentioned two offences except in the manner specified under section 195 of the Cr.P.C.:
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
x x x x x
(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
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.
20. In the light of the language of section 195 Cr.P.C. we do not find fault with the conclusion of the learned Magistrate in dismissing the complaint of the appellant herein for the reason that the complaint is not filed by the person contemplated under section 195 Cr.P.C. It may be mentioned here that as a matter of fact the Court before which the instant complaint was lodged is not the same Court before which the appellant herein was prosecuted by the respondent.
21. Under section 340(1) of the Cr.P.C., it is stipulated that whenever it appears that any one of the offences mentioned in clause (b) of sub-section (1) of section 195 appears to have been committed in or in relation to a proceeding before a Court, that Court either on an application made to it or otherwise make a complaint thereof in writing to the competent Magistrate after following the procedure mentioned under section 340 of the Cr.P.C. [2*]
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2* Section 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 interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (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 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 evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed.
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
(4) In this section, Court has the same meaning as in section 195.
22. Admittedly, the appellant herein did not make an application to the judicial magistrate No.1, Pollachi under section 340 to make a complaint against the respondent herein nor the said magistrate suo moto made a complaint. Therefore, the learned judicial magistrate No.2 before whom the private complaint is made by the appellant had no option but to dismiss the complaint.
23. But the High Court, in our view, is not justified in confining itself to the examination of the correctness of the order of the magistrate dismissing the said private complaint. Both Section 195(1) and Section 340(2) Cr.P.C. authorise the exercise of the power conferred under Section 195(1) by any other court to which the court in respect of which the offence is committed is subordinate to. (hereinafter referred to for the sake of convenience as the original court)
24. It can be seen from the language of Section 195(4), Cr.P.C. that it creates a legal fiction whereby it is declared that the original court is subordinate to that court to which appeals ordinarily lie from the judgments or orders of the original court. (hereinafter referred to as the appellate court) In our view, such a fiction must be understood in the context of Article 227 [3*] of the Constitution of India and Section 10(1) and 15(1) of Cr.P.C [4*]. Article 227 confers the power of superintendence on a High Court over all courts and tribunals functioning within the territories in relation to which a High Court exercises jurisdiction. Section 10(1) and 15(1) of Cr.P.C. declare that the Assistant Sessions Judges and Chief Judicial Magistrates are subordinate to the Session Judge and other Judicial Magistrates to be subordinate to the Chief Judicial Magistrate subject to the control of the Session Judge. It may be remembered that Section 195(4) deals with the authority of the superior courts in the context of taking cognizance of various offences mentioned in Section 195(1). Such offences are relatable to civil, criminal and revenue courts etc. [5*] Each one of the streams of these courts may have their administrative hierarchy depending upon under the law by which such courts are brought into existence. It is also well known that certain courts have appellate jurisdiction while certain courts only have original jurisdiction. Appellate jurisdiction is the creature of statute and depending upon the scheme of a particular statute, the forum of appeal varies. Generally, the appellate for a are created on the basis of either subject matter of dispute or economic implications or nature of crime etc.
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3* 227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction;
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein;
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
4* 10. Subordinate of Assistant Sessions Judges (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
15. Subordination of Judicial Magistrates- (1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
5* 195 (3) In clause (b) of sub-section (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
25. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate court competent to entertain the appeals either from decrees or sentence passed by the original court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo moto whenever the interests of justice demand.
26. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors (1) the embargo created by Section 195 restricting the liberty of aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195; (2) such offences pertain to either the contempt of lawful authorities of public servants or offences against public justice.
27. A constitution Bench of this Court in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. [JT 2005 (3) SC 195 : 2005 (4) SCC 370], while interpreting Section 195 Cr.P.C., although in a different context, held that any interpretation which leads to a situation where a victim of crime is rendered remediless, has to be discarded [6*]. The power of superintendence like any other power impliedly carries an obligation to exercise powers in an appropriate case to maintain the majesty of the judicial process and the purity of the legal system. Such an obligation becomes more profound when these allegations of commission of offences pertain to public justice.
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6* 23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words ‘Court is of opinion that it is expedient in the interest of justice.’ This shows that such a course will be adopted only if the interest of justice requires and not in every case. 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(i)(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 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 remedy-less. Any interpretation which leads to a situation where a victim of a crime is rendered remedy-less, has to be discarded.
25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large.
28. In the case on hand, when the appellant alleges that he had been prosecuted on the basis of a palpably false statement coupled with the further allegation in his complaint that the respondent did so for extraneous considerations, we are of the opinion that it is an appropriate case where the High Court ought to have exercised the jurisdiction under Section 195 Cr.P.C.. The allegation such as the one made by the complainant against the respondent is not uncommon. As was pointed earlier by this Court in a different context there is no rule of law that common sense should be put in cold storage Para 63 of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors. [1985 (Suppl.) SCC 144]. Our Constitution is designed on the theory of checks and balances. A theory which is the product of the belief that all power corrupts – such belief is based on experience.
29. The appeal is, therefore, allowed. The matter is remitted to the High Court for further appropriate course of action to initiate proceedings against the respondent on the basis of the complaint of the appellant in accordance with law.
1. Leave granted.
2. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the High Court of Madras, the unsuccessful petitioner therein preferred the instant appeal.
3. A petition in C.M.P. No.4561 of 2010 (private complaint) under section 200 of the Code of Criminal Procedure, 1973 (hereinafter for short referred to as the Cr.P.C.) filed by the appellant herein against the respondent came to be dismissed by the Judicial Magistrate No.2 at Pollachi by his judgment dated 31st August 2010. Challenging the same, the above-mentioned Crl. R.C. was filed.
4. The factual background of the case is as follows:
5. The respondent was working as a Sub-Inspector in an All-Women Police Station, Pollachi at the relevant point of time. On 18th May 2008, one Nagal reported to the respondent that the appellant herein had cheated her. The respondent registered Crime No.18/08 under sections 417 and 506(i) of the Indian Penal Code (hereinafter for short referred to as the IPC). Eventually, the respondent filed a charge-sheet, the relevant portion of which reads as follows:
On 26.12.07, that the accused called upon the de-facto complainant for an outing and while going in the night at around 10.00 via Vadugapalayam Ittori route the accused enticed the de-facto complainant of marrying her and had sexual interaction several times in the nearby jungle and on account of which the complainant became pregnant and when she asked the accused to marry him he threatened the complainant of killing her if she disclosed the above fact to anybody.
Hence the accused committed an offence punishable under Sections 417, 506 (i) of IPC.
[emphasis supplied]
6. The appellant was tried for the offences mentioned above by the learned Judicial Magistrate No.1, Pollachi. The learned Judicial Magistrate by his judgment dated 15th March 2010 acquitted the appellant of both the charges.
7. It appears that the said judgment has become final.
8. In the light of the acquittal, the appellant filed a complaint (C.M.P. No.4561 of 2010) under section 190 of the Cr.P.C. on the file of the Judicial Magistrate No.2 at Pollachi praying that the respondent be tried for an offence under section 193 of the IPC. The said complaint came to be dismissed by an order dated 31st August 2010 on the ground that in view of sections 195 and 340 of the Cr.P.C. the complaint of the appellant herein is not maintainable.
9. Aggrieved by the said dismissal, the appellant herein unsuccessfully carried the matter to the High Court. Hence the present appeal.
10. The case of the appellant herein in his complaint is that though Nagal alleged an offence of cheating against the appellant which led to the pregnancy of Nagal, such an offence was not proved against him. Upon the registration of Crime No.18/08, Nagal was subjected to medical examination. She was not found to be pregnant. Dr. Geetha, who examined Nagal, categorically opined that Nagal was not found to be pregnant on the date of examination which took place six days after the registration of the FIR. In spite of the definite medical opinion that Nagal was not pregnant, the respondent chose to file a charge-sheet with an allegation that Nagal became pregnant. Therefore, according to the appellant, the charge-sheet was filed with a deliberate false statement by the respondent herein. The appellant, therefore, prayed in his complaint as follows;
It is, therefore, prayed that this Honble Court may be pleased to take this complaint on file, try the accused U/s. 193 IPC for deliberately giving false evidence in the Court as against the complainant, and punish the accused and pass such further or other orders as this Honble court deems fit and proper.
11. The learned Magistrate dismissed the complaint on the ground that section 195 of the Cr.P.C. bars criminal courts to take cognizance of an offence under section 193 of the IPC except on the complaint in writing of that Court or an officer of that Court in relation to any proceeding in the Court where the offence under section 193 is said to have been committed and a private complaint such as the one on hand is not maintainable.
12. The High Court declined to interfere with the matter in exercise of its revisional jurisdiction. The operative portion of the order under challenge reads as follows:
3. This court is in agreement with the conclusion of the court below in dismissing the complaint. The complaint provided very little to take action upon, particularly, where this court finds that the respondent had not in any manner tampered with the medical record so as to mulct the petitioner with criminal liability. The wording in the final report informing of the de facto complainant having been pregnant can in the facts and circumstances of the case, be seen only as a mistake.
4. In the result, the criminal revision stands dismissed.
13. We regret to place on record that at every stage of this matter the inquiry was misdirected.
14. The facts relevant for the issue on hand are that:
(1) The appellant was prosecuted for the offences under sections 417 and 506 (i) IPC. (The factual allegations forming the basis of such a prosecution are already noted earlier).
(2) The respondent filed a charge-sheet with an assertion that the appellant was responsible for pregnancy of Nagal.
(3) Even before the filing of the charge-sheet, a definite medical opinion was available to the respondent (secured during the course of the investigation of the offence alleged against the appellant) to the effect that Nagal was not pregnant.
(4) Still the respondent chose to assert in the charge-sheet that Nagal was pregnant.
(5) The prosecution against the appellant ended in acquittal.
15. The above-mentioned indisputable facts, in our opinion, prima facie may not constitute an offence under section 193 IPC but may constitute an offence under section 211 IPC. We say prima facie only for the reason this aspect has not been examined at any stage in the case nor any submission is made before us on either side but we cannot help taking notice of the basic facts and the legal position.
16. The offence under section 193 [1*] IPC is an act of giving false evidence or fabricating false evidence in a judicial proceeding. The act of giving false evidence is defined under section 191 IPC as follows:
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1* Section 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 extended to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extended to three years, and shall also be liable to fine.
Explanation 1.A trial before a Court-martial; is a judicial proceeding.
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.
191. Giving false evidence. Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
16.1. It can be seen from the definition that to constitute an act of giving false evidence, a person must make a statement which is either false to the knowledge or belief of the maker or which the maker does not believe to be true. Further, it requires that such a statement is made by a person (1) who is legally bound by an oath; (2) by an express provision of law to state the truth; or (3) being bound by law to make a declaration upon any subject.
17. A police officer filing a charge-sheet does not make any statement on oath nor is bound by any express provision of law to state the truth though in our opinion being a public servant is obliged to act in good faith. Whether the statement made by the police officer in a charge-sheet amounts to a declaration upon any subject within the meaning of the clause being bound by law to make a declaration upon any subject occurring under section 191 of the IPC is a question which requires further examination.
18. On the other hand, section 211 of the IPC deals with an offence of instituting or causing to be instituted any criminal proceeding or falsely charging any person of having committed an offence even when there is no just or lawful ground for such proceeding to the knowledge of the person instituting or causing the institution of the criminal proceedings.
19. Irrespective of the fact whether the offence disclosed by the complaint of the appellant herein is an offence falling either under section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares that no Court shall take cognizance of either of the above-mentioned two offences except in the manner specified under section 195 of the Cr.P.C.:
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
x x x x x
(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
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.
20. In the light of the language of section 195 Cr.P.C. we do not find fault with the conclusion of the learned Magistrate in dismissing the complaint of the appellant herein for the reason that the complaint is not filed by the person contemplated under section 195 Cr.P.C. It may be mentioned here that as a matter of fact the Court before which the instant complaint was lodged is not the same Court before which the appellant herein was prosecuted by the respondent.
21. Under section 340(1) of the Cr.P.C., it is stipulated that whenever it appears that any one of the offences mentioned in clause (b) of sub-section (1) of section 195 appears to have been committed in or in relation to a proceeding before a Court, that Court either on an application made to it or otherwise make a complaint thereof in writing to the competent Magistrate after following the procedure mentioned under section 340 of the Cr.P.C. [2*]
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2* Section 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 interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (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 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 evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed.
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.
(4) In this section, Court has the same meaning as in section 195.
22. Admittedly, the appellant herein did not make an application to the judicial magistrate No.1, Pollachi under section 340 to make a complaint against the respondent herein nor the said magistrate suo moto made a complaint. Therefore, the learned judicial magistrate No.2 before whom the private complaint is made by the appellant had no option but to dismiss the complaint.
23. But the High Court, in our view, is not justified in confining itself to the examination of the correctness of the order of the magistrate dismissing the said private complaint. Both Section 195(1) and Section 340(2) Cr.P.C. authorise the exercise of the power conferred under Section 195(1) by any other court to which the court in respect of which the offence is committed is subordinate to. (hereinafter referred to for the sake of convenience as the original court)
24. It can be seen from the language of Section 195(4), Cr.P.C. that it creates a legal fiction whereby it is declared that the original court is subordinate to that court to which appeals ordinarily lie from the judgments or orders of the original court. (hereinafter referred to as the appellate court) In our view, such a fiction must be understood in the context of Article 227 [3*] of the Constitution of India and Section 10(1) and 15(1) of Cr.P.C [4*]. Article 227 confers the power of superintendence on a High Court over all courts and tribunals functioning within the territories in relation to which a High Court exercises jurisdiction. Section 10(1) and 15(1) of Cr.P.C. declare that the Assistant Sessions Judges and Chief Judicial Magistrates are subordinate to the Session Judge and other Judicial Magistrates to be subordinate to the Chief Judicial Magistrate subject to the control of the Session Judge. It may be remembered that Section 195(4) deals with the authority of the superior courts in the context of taking cognizance of various offences mentioned in Section 195(1). Such offences are relatable to civil, criminal and revenue courts etc. [5*] Each one of the streams of these courts may have their administrative hierarchy depending upon under the law by which such courts are brought into existence. It is also well known that certain courts have appellate jurisdiction while certain courts only have original jurisdiction. Appellate jurisdiction is the creature of statute and depending upon the scheme of a particular statute, the forum of appeal varies. Generally, the appellate for a are created on the basis of either subject matter of dispute or economic implications or nature of crime etc.
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3* 227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction;
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein;
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
4* 10. Subordinate of Assistant Sessions Judges (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
15. Subordination of Judicial Magistrates- (1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
5* 195 (3) In clause (b) of sub-section (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
25. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate court competent to entertain the appeals either from decrees or sentence passed by the original court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo moto whenever the interests of justice demand.
26. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors (1) the embargo created by Section 195 restricting the liberty of aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195; (2) such offences pertain to either the contempt of lawful authorities of public servants or offences against public justice.
27. A constitution Bench of this Court in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. [JT 2005 (3) SC 195 : 2005 (4) SCC 370], while interpreting Section 195 Cr.P.C., although in a different context, held that any interpretation which leads to a situation where a victim of crime is rendered remediless, has to be discarded [6*]. The power of superintendence like any other power impliedly carries an obligation to exercise powers in an appropriate case to maintain the majesty of the judicial process and the purity of the legal system. Such an obligation becomes more profound when these allegations of commission of offences pertain to public justice.
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6* 23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words ‘Court is of opinion that it is expedient in the interest of justice.’ This shows that such a course will be adopted only if the interest of justice requires and not in every case. 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(i)(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 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 remedy-less. Any interpretation which leads to a situation where a victim of a crime is rendered remedy-less, has to be discarded.
25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large.
28. In the case on hand, when the appellant alleges that he had been prosecuted on the basis of a palpably false statement coupled with the further allegation in his complaint that the respondent did so for extraneous considerations, we are of the opinion that it is an appropriate case where the High Court ought to have exercised the jurisdiction under Section 195 Cr.P.C.. The allegation such as the one made by the complainant against the respondent is not uncommon. As was pointed earlier by this Court in a different context there is no rule of law that common sense should be put in cold storage Para 63 of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors. [1985 (Suppl.) SCC 144]. Our Constitution is designed on the theory of checks and balances. A theory which is the product of the belief that all power corrupts – such belief is based on experience.
29. The appeal is, therefore, allowed. The matter is remitted to the High Court for further appropriate course of action to initiate proceedings against the respondent on the basis of the complaint of the appellant in accordance with law.
