SH. NARENDRA KUMAR SRIVASTAVA versus THE STATE OF BIHAR & ORS. on 4 February 2019

Conclusion

1. We have heard the learned counsel for the parties.

F

2. This appeal is directed against the judgment and order dated30.03.2017 in Criminal Revision No. 111 of 2017, whereby the HighCourt of Judicature at Patna has allowed the revision petition filed bythe respondent Nos. 2 to 4 and set aside the order dated 22.12.2016passed by the learned Assistant Chief Judicial Magistrate-VII, Motihari,taking cognizance of an offence punishable under Section 193 of theIndian Penal Code, 1860 (for short, ‘the IPC’) on the basis of a privatecomplaint filed by the appellant.

G

A3. Respondent Nos. 2 to 4 are the officials of Doordarshan andAll India Radio. The appellant had joined the Doordarshan Kendra,Motihari, as an Engineering Assistant in the pay scale of Rs.1400/- toRs.2600/-. It was contended that the pay scale of Engineering Assistantswas revised from Rs.2000/- to Rs.3000/- with effect from 01.01.1986,by the Ministry of Information and Broadcasting by its decision datedB15.05.1995. The pay scale of Senior Engineering Assistant was revisedfrom Rs.2000/- to Rs.3275/- with effect from 01.01.1986. It is his casethat replacement pay scale of all the categories, with effect from01.01.1996, was fixed at Rs.6500/- to Rs.10,500/-. The EmployeesAssociation of the concerned cadre, upon coming into force of AssuredCCareer Progression (ACP) scheme, had represented for grant of 1[st]ACP in the pay scale of Rs. 8000/- to 13,500/- which was not beingallowed, which led to the filing of an application before CentralAdministrative Tribunal, Patna Bench (for short ‘the CAT’). This gaverise to O.A. No. 514 of 2002. The said O.A. was allowed by the CAT,by an order dated 07.09.2009.D

4. The Union of India challenged the said order by filing a writpetition before the High Court. The High Court allowed the writ petitionwith an observation that no generalized direction could be given for thegrant of ACP and the ACP has to be granted on individual basis. Theappellant, thereafter, represented before the competent authority for grantEof 1[st] ACP. On refusal, he filed O.A. No.173 of 2009 before the CAT,which was dismissed on 13.02.2013. The appellant, thereafter,approached the High Court by filing a writ petition CWJC No. 2797 of2014, which was disposed of by an order dated 29.06.2014, with adirection to the respondents therein to pass appropriate order on theFrepresentation filed by the appellant. Alleging non-compliance of thesaid order, the appellant filed a contempt petition before the High Court,which gave rise to MJC No.2912 of 2015.

5. In the petition alleging contempt, it was contended that in thecontempt case, the respondents filed a show-cause showing complianceof the order dated 29.06.2014, and accordingly, the contempt case wasGdropped with liberty to the appellant to challenge the order passed incompliance of the court’s directive before an appropriate forum. Insteadof challenging the said order, the appellant filed a private complaint againstrespondent Nos. 2 to 4 before the Assistant Chief Judicial Magistrate-VII, Motihari alleging commission of offence punishable under SectionH193 read with Section 34 of the IPC alleging that because of the false and wrong statement made by the respondents in their show-causeaffidavit, the High Court dropped the contempt case. The Magistrate byan order dated 22.12.2016 took cognizance of the same and summonedrespondent Nos. 2 to 4.

6. The respondent Nos. 2 to 4 challenged the said order of theMagistrate before the High Court. As noticed above, the High Court hasallowed the criminal revision petition by its order dated 30.03.2017.

7. Learned counsel for the appellant submits that in the contemptpetition filed by the appellant, the respondents had filed false affidavitsprepared/forged outside the court. On the basis of the false affidavits,the High Court dropped the contempt case. Therefore, the appellantfiled a complaint before the Magistrate under Section 193 of the IPCagainst the respondent Nos. 2 to 4. It is argued that it was not mandatoryto obtain prior sanction for filing a private complaint under Section 193of the IPC and that the complaint filed by the appellant was maintainable.In this connection he has relied on a decision of this Court in SachidaNand Singhand Anr. v. State of Bihar and Anr.,(1998) 2 SCC 493.

8. On the other hand, learned counsel appearing for therespondents, submits that the punishment for offence giving falseevidence in judicial proceedings is stipulated in Section 193 of the IPCand the law governing taking of the cognizance of such an offence iscontained in Section 195 of the Cr.P.C. Section 195 of the Cr.P.C. putsa clear bar on taking of cognizance by a Court, of an offence punishableunder Section 193 of the IPC, unless it is on a complaint in writing of theCourt or such officer of the Court as that Court may authorize in writingin this behalf, in relation to a judicial proceeding of which Court, theoffence is alleged to have been committed. Since no such complaint hasbeen made, the High Court was justified in quashing the order of theMagistrate. In this connection, reliance is placed on the judgment of thisCourt in M.S. Ahlawat v. State of Haryana and another, (2000) 1SCC 278.

9. Having regard to the contentions urged, the question forconsideration is whether the Magistrate was justified in taking cognizanceof an offence punishable under Section 193 of the IPC on the basis of aprivate complaint?

10. Before proceeding further, it is important to peruse the relevantsections of the IPC and Cr.P.C. Section 193 of IPC reads as follows:

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

“193. Punishment for false evidence.—Whoever intentionallygives false evidence in any stage of a judicial proceeding, orfabricates false evidence for the purpose of being used in anystage of a judicial proceeding, shall be punished with imprisonmentof either description for a term which may extend to seven years,and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence inany other case, shall be punished with imprisonment of eitherdescription for a term which may extend to three years, and shallalso be liable to fine.

Explanation 1.—A trial before a Court-martial is a judicialproceeding.

Explanation 2.—An investigation directed by law preliminary to aproceeding before a Court of Justice, is a stage of judicialproceeding, though that investigation may not take place before aCourt of Justice.

Illustration

A, in an enquiry before a Magistrate for the purpose of ascertainingwhether Z ought to be committed for trial, makes on oath astatement which he knows to be false. As this enquiry is a stageof a judicial proceeding, A has given false evidence.

Explanation 3.—An investigation directed by a Court of Justiceaccording to law, and conducted under the authority of a Court ofJustice, is a stage of a judicial proceeding, though that investigationmay not take place before a Court of Justice.

Illustration

A, in an enquiry before an officer deputed by a Court of Justice toascertain on the spot the boundaries of land, makes on oath astatement which he knows to be false. As this enquiry is a stageof a judicial proceeding, A has given false evidence.”

11. Section 195 of the Cr.P.C. expressly states as follows:

“195. Prosecution for contempt of lawful authority of publicservants, for offences against public justice and for offencesrelating to documents given in evidence. —(1) No Courtshall take cognizance —

(a) (i) of any offence punishable under sections 172 to 188 (bothinclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, 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 concernedor of some other public servant to whom he is administrativelysubordinate; (b) (i) of any offence punishable under any of the followingsections 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 havebeen committed in, or in relation to, any proceeding in anyCourt, or

(ii) of any offence described in section 463, or punishableunder section 471, section 475 or section 476, of the saidCode, when such offence is alleged to have been committed in respect of a document produced or given in evidence in aproceeding 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 writing of that Court or bysuch officer of the Court as that Court may authorise in writing inthis behalf, or of some other Court to which that Court issubordinate].

(2) Where a complaint has been made by a public servant underclause (a) of sub-section (1) any authority to which he isadministratively subordinate may order the withdrawal of thecomplaint and send a copy of such order to the Court; and uponits receipt by the Court, no further proceedings shall be taken onthe complaint:

Provided that no such withdrawal shall be ordered if the trial inthe Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court” means aCivil, Revenue or Criminal Court, and includes a tribunal constitutedby or under a Central, Provincial or State Act if declared by thatAct to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shallbe deemed to be subordinate to the Court to which appealsordinarily lie from the appealable decrees or sentences of such A

B

C

D

E

F

G

H

Aformer Court, or in the case of a Civil Court from whose decreesno appeal ordinarily lies, to the principal Court having ordinaryoriginal civil jurisdiction within whose local jurisdiction such CivilCourt is situate:

Provided that—

(a) where appeals lie to more than one Court, the Appellate Courtof inferior jurisdiction shall be the Court to which such Court shallbe deemed to be subordinate; B

(b) where appeals lie to a civil and also to a Revenue Court, suchCourt shall be deemed to be subordinate to the Civil or RevenueCCourt according to the nature of the case or proceeding inconnection with which the offence is alleged to have beencommitted.”

(emphasis supplied)

12. It is clear from sub-section (1)(b) of Section 195 of the Cr.P.C.that the section deals with two separate set of offences:D

(i) of any offence punishable under Sections 193 to 196 (bothinclusive), 199, 200, 205 to 211 (both inclusive) and 228 ofIPC, when such offence is alleged to have been committedin, or in relation to, any proceeding in any Court; [Section195(1)(b)(i)]

E

(ii) of any offence described in section 463, or punishable undersection 471, section 475 or section 476, of IPC, when suchoffence is alleged to have been committed in respect of adocument produced or given in evidence in a proceeding inany Court. [Section 195(1)(b)(ii)].

F

13. On the reading of these sections, it can be easily seen that theoffences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearlydistinct. The first category of offences refers to offences of false evidenceand offences against public justice, whereas, the second category ofoffences relates to offences in respect of a document produced or givenGin evidence in a proceeding in any court.

14. Section 195 of the Cr.P.C. lays down a rule to be followed bythe court which is to take cognizance of an offence specified therein butcontains no direction for the guidance of the court which desires to initiateprosecution in respect of an offence alleged to have been committed inor in relation to a proceeding in the latter court. For that purpose, oneH

SH. NARENDRA KUMAR SRIVASTAVA v. THE STATE OFBIHAR & ORS. [S. ABDUL NAZEER, J.]

must turn to Section 340 which requires the court desiring to put the lawin motion to prefer a complaint either suo motu or an application madeto it in that behalf.

15. Section 340 of the Cr.P.C. reads as follows:

“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 justicethat an inquiry should be made into any offence referred to inclause (b) of sub-section (1) of Section 195, which appears tohave been committed in or in relation to a proceeding in that Courtor, as the case may be, in respect of a document produced orgiven 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;

(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 of the accusedbefore such Magistrate, or if the alleged offence is non-bailableand the Court thinks it necessary so to do, send the accused incustody to such Magistrate; and (e) bind over any person to appear and give evidence beforesuch Magistrate.

(2) The power conferred on a Court by sub-section (1) in respectof an offence may, in any case where that Court has neither madea complaint under sub-section (1) in respect of that offence norrejected an application for the making of such complaint, beexercised by the Court to which such former Court is subordinatewithin 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, bysuch officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court[orby such officer of the Court as the Court may authorise inwriting in this behalf].

(4) In this section, “Court” has the same meaning as in Section195.”

A

B

C

D

E

F

G

H

A16. Section 340 of Cr.P.C. makes it clear that a prosecution underthis Section can be initiated only by the sanction of the court under whoseproceedings an offence referred to in Section 195(1)(b) has allegedlybeen committed. The object of this Section is to ascertain whether anyoffence affecting administration of justice has been committed in relationto any document produced or given in evidence in court during the timeBwhen the document or evidence was in custodia legis and whether it isalso expedient in the interest of justice to take such action. The courtshall not only consider prima facie case but also see whether it is in oragainst public interest to allow a criminal proceeding to be instituted.

17. This Court in Chajoo Ramv. Radhey Shyam, (1971) 1 SCCC774 at page 779, held that the prosecution under Section 195 could beinitiated only by the sanction of the court and only if the same appears tobe deliberate and conscious. It emphatically held as under:

“7. The prosecution for perjury should be sanctioned by courtsonly in those cases where the perjury appears to be deliberateDand conscious and the conviction is reasonably probable or likely.No doubt giving of false evidence and filing false affidavits is anevil which must be effectively curbed with a strong hand but tostart prosecution for perjury too readily and too frequently withoutdue care and caution and on inconclusive and doubtful materialdefeats its very purpose. Prosecution should be ordered when itEis considered expedient in the interests of justice to punish thedelinquent and not merely because there is some inaccuracy inthe statement which may be innocent or immaterial. There mustbe prima facie case of deliberate falsehood on a matter of substanceand the court should be satisfied that there is reasonable foundationFfor the charge…...”

18. In Santokh Singh v. Izhar Hussain and Anr.,(1973) 2 SCC406, this Court has held that every incorrect or false statement does notmake it incumbent on the court to order prosecution. The Court has toexercise judicial discretion in the light of all the relevant circumstanceswhen it determines the question of expediency. The court ordersGprosecution in the larger interest of the administration of justice and notto gratify the feelings of personal revenge or vindictiveness or to servethe ends of a private party. Too frequent prosecutions for such offencestend to defeat its very object. It is only in glaring cases of deliberatefalsehood where conviction is highly likely that the court should directHprosecution.

19. This Court in M.S. Ahlawat (supra)has clearly held that privatecomplaints are absolutely barred in relation to an offence said to havebeen committed under Section 193 IPC and that the procedure prescribedunder Section 195 of the Cr.P.C. are mandatory. It was held that:

“5. Chapter XI IPC deals with “false evidence and offences againstpublic justice” and Section 193 occurring therein provides forpunishment for giving or fabricating false evidence in a judicialproceeding. Section 195 of the Criminal Procedure Code (CrPC)provides that where an act amounts to an offence of contempt ofthe lawful authority of public servants or to an offence againstpublic justice such as giving false evidence under Section 193 IPCetc. or to an offence relating to documents actually used in a court,private prosecutions are barred absolutely and only the court inrelation to which the offence was committed may initiateproceedings. Provisions of Section 195 CrPC are mandatory andno court has jurisdiction to take cognizance of any of the offencesmentioned therein unless there is a complaint in writing as requiredunder that section. It is settled law that every incorrect or falsestatement does not make it incumbent upon the court to orderprosecution, but (sic) to exercise judicial discretion to orderprosecution only in the larger interest of the administration of justice.

6. Section 340 CrPC prescribes the procedure as to how acomplaint may be preferred under Section 195 CrPC. Whileunder Section 195 CrPC it is open to the court before whichthe offence was committed to prefer a complaint for theprosecution of the offender, Section 340 CrPC prescribesthe procedure as to how that complaint may be preferred.Provisions under Section 195 CrPC are mandatory and nocourt can take cognizance of offences referred to therein(sic). It is in respect of such offences the court hasjurisdiction to proceed under Section 340 CrPC and acomplaint outside the provisions of Section 340 CrPCcannot be filed by any civil, revenue or criminal court underits inherent jurisdiction.”

(emphasis supplied)

A

B

C

D

E

F

G

A

A20. As already mentioned, clauses under Section 195(1)(b) of theCr.P.C. i.e. sub-section 195(1)(b)(i) and sub-section 195(1)(b)(ii) caterto separate offences. Though Section 340 of the Cr.P.C. is a genericsection for offences committed under Section 195(1)(b), the same hasdifferent and exclusive application to clauses (i) and (ii) of Section195(1)(b) of the Cr.P.C.B

21. In Sachida Nand Singh (supra) relied on by the learned counselfor the appellant, this Court was considering the question as to whetherthe bar contained in Section 195(1)(b)(ii) of the Cr.P.C. is applicable to acase where forgery of the document was committed before the documentwas produced in a court. It was held:C

“6. A reading of the clause reveals two main postulates foroperation of the bar mentioned there. First is, there must beallegation that an offence (it should be either an offence describedin Section 463 or any other offence punishable under Sections471, 475, 476 of the IPC) has been committed. Second is thatDsuch offence should have been committed in respect of a documentproduced or given in evidence in a proceeding in any court. Thereis no dispute before us that if forgery has been committed whilethe document was in the custody of a court, then prosecution canbe launched only with a complaint made by that court. There isalso no dispute that if forgery was committed with a documentEwhich has not been produced in a court then the prosecution wouldlie at the instance of any person. If so, will its production in acourt make all the difference?

xxx xxx xxx

23. The sequitur of the above discussion is that the bar containedFin Section 195(1)(b)(ii) of the Code is not applicable to a casewhere forgery of the document was committed before thedocument was produced in a court. Accordingly we dismiss thisappeal.”

22. In Sachida Nand Singh (supra), this Court had dealt withGSection 195(1)(b)(ii) of the Cr.P.C unlike the present case which iscovered by the preceding clause of the Section. The category of offenceswhich fall under Section 195(1)(b)(i) of the Cr.P.C. refer to the offenceof giving false evidence and offences against public justice which isdistinctly different from those offences under Section 195(1)(b)(ii) ofCr.P.C, where a dispute could arise whether the offence of forging aH

SH. NARENDRA KUMAR SRIVASTAVA v. THE STATE OFBIHAR & ORS. [S. ABDUL NAZEER, J.]

document was committed outside the court or when it was in the custodyof the court. Hence, this decision has no application to the facts of thepresent case.

23. The case in hand squarely falls within the category of casesfalling under Section 195(1)(b)(i) of the Cr.P.C. as the offence ispunishable under Section 193 of the IPC. Therefore, the Magistrate haserred in taking cognizance of the offence on the basis of a privatecomplaint. The High Court, in our view, has rightly set aside the order ofthe Magistrate. However, having regard to the facts and circumstancesof the case, we deem it proper to set aside the costs imposed by theHigh Court.

24. The appeal is disposed of accordingly.

Ankit Gyan

Appeal disposed of.

A

B

C

D

E

F

G

H