Supreme Court of India
BHIMA RAZU PRASADversusSTATE, REP. BY DEPUTY SUPERINTENDENT OF POLICE, CBI/SPE/ACU-II
- Citation
- 2021 INSC 180
- Decided
- 12 March 2021
- Disposal
- Dismissed
Holding
Section 195(1)(b)(i) CrPC does not bar prosecution by the investigating agency for an offence punishable under Section 193 IPC committed during the investigative stage, provided the complaint is lodged before trial, as such offence is not “in relation to” any court proceeding.
Summary
The case involved Bhima Razu Prasad, who was charged with offences under the IPC, PC Act and alleged to have concealed disproportionate assets. During investigation, accused No.2 and No.3 claimed the seized money was held in escrow, producing a fabricated sale deed to shield Prasad. The trial and High Courts convicted the accused, rejecting the contention that a complaint under Section 195(1)(b) of the CrPC was required before framing charges under Section 193 IPC. The Supreme Court examined whether Section 195(1)(b)(i) bars prosecution for false‑evidence offences committed during the investigative stage and clarified the meaning of “in relation to” and “stage of a judicial proceeding”. It held that such offences are not barred by Section 195(1)(b)(i) when the investigating agency lodges a complaint before trial, as there is no direct nexus with a court proceeding. Consequently, the appeals were dismissed and the sentences upheld, with the appellants directed to surrender to serve the balance of their terms.
Issues considered
- Whether Section 195(1)(b)(i) CrPC bars prosecution by an investigating agency for an offence under Section 193 IPC committed during the investigation stage.
- Whether an offence under Section 193 IPC committed at the investigative stage is “in relation to” any proceeding in any court within the meaning of Section 195(1)(b)(i).
- Whether the phrase “stage of a judicial proceeding” under Explanation 2 to Section 193 IPC is synonymous with “proceeding in any court” under Section 195(1)(b)(i).
- Whether a written complaint under Section 195(1)(b) and the procedure of Section 340 CrPC is mandatory in the present facts.
Legislation cited
- Code of Criminal Procedure, 1973s. 195(1)(b)(i), s. 340
- Indian Penal Code, 1860s. 120B, s. 192, s. 193, s. 420, s. 467, s. 468, s. 471
- Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(1)(e), s. 13(2)
Subjects
Section 195 CrPCSection 193 IPCfalse evidenceinvestigation stagedisproportionate assetspublic justicein relation tostage of judicial proceedingpreventive corruption actprosecution bar
Judgment
1020 [2021]REPORTS
SUPREME COURT 2 S.C.R. 1020 [2021] 2 S.C.R.
A BHIMA RAZU PRASAD
v.
STATE, REP. BY DEPUTY SUPERINTENDENT OF POLICE,
CBI/SPE/ACU-II
B (Criminal Appeal No. 305 of 2021)
MARCH 12, 2021
[MOHAN M. SHANTANAGOUDAR AND
VINEET SARAN, JJ.]
Code of Criminal Procedure, 1973 – s.195(1)(b) – Penal
C Code, 1860 – ss.420, 467, 468 and 471 – Prevention of Corruption
Act, 1988 – s.13(2) r/w. s.13(1)(d) – A case was registered against
the appellant/accused no.1 u/ss.420, 467, 468 and 471 of IPC and
s.13(2) r/w. s.13(1)(d) of the PC Act – Thereafter, the respondent-
investigative agency conducted search at the appellant’s residence
D and found an amount of Rs.79,65,900/-, in addition to jewellery
and property papers – Assets were found disproportionate to the
appellant’s known sources of income – Another separate case was
registered u/s. 13(2) r/w. s.13(1)(d) of the PC Act – During the course
of investigation, accused no. 2 claimed that he had entered into an
agreement to sale to purchase properties from accused no.3 and
E since he (accused no.2) was not available on the date of execution
of the agreement, he had entrusted the amount of Rs. 80 lakhs to
the accused no.1 – Since, the accused no.1 house was raided, the
money was not paid and agreement to sale was not executed – Hence,
accused no. 2 and 3 sought recovery of money – However, the
F respondent-investigation agency revealed that the market value fixed
by the State Government of the said properties was much below
Rs.80 lakhs – The license of the stamp vendor/accused no.4, through
whom the stamp papers of sale deed were issued, was cancelled in
the year 1992 and sale deed were issued in the year 2001 – So, the
respondent-investigative agency alleged that the accused no.1
G conspired with accused no.2-4 to fabricate false deed of agreement
to sale for the purpose of being shielded from legal action in the
disproportionate assets case – The charges were framed – The
accused contended that complaint u/s.195(1)(b), Cr.P.C. was
necessary for prosecuting the case u/s.193, IPC – The contention
H was rejected by the trial Court – The trial Court convicted the
1020
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1021
appellant/accused no.1 u/s.13(2) r/w. s.13(1)(e) of the PC Act as A
well as ss.120B and 193 of the IPC and accused no.2 and 3 were
convicted u/s.120B and s.193 of the IPC – Before the High Court,
the accused no. 2 and 3 reiterated that the requirements of
s.195(1)(b)(i) and s.340, Cr.P.C. were not complied with prior to
framing of charge u/s. 193 of IPC – The said contention was again
rejected by the High Court – The High Court confirmed the trial B
Court’s finding that the accused had conspired to fabricate false
evidence for shielding appellant/accused no.1 from prosecution in
the disproportionate assets case – Whether s.195(1)(b)(i),Cr.P.C.
bars lodging of case by the investigating agency u/s. 193, IPC, in
respect of offence of giving false evidence which is committed at C
the stage of investigation, prior to production of such evidence
before the Trial Court – Held: S. 195(1)(b)(i), Cr.P.C. will not bar
prosecution by the investigating agency for offence punishable u/
s.193, IPC, which is committed during the stage of investigation –
This is provided that the investigating agency has lodged complaint
or registered the case u/s. 193, IPC prior to commencement of D
proceedings and production of such evidence before the trial Court
– In such circumstance, the same would not be considered an offence
committed in, or in relation to, any proceeding in any Court for the
purpose of s.195(1)(b)(i), Cr.P.C. – Thus, appellants directed to
surrender for serving out the rest of their sentence, if they are not E
already in custody.
Code of Criminal Procedure, 1973 – s.195(1)(b)(i) – Whether
an offence u/s.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 u/s. F
195(1)(b)(i), Cr.P.C. – Held: The words “in relation to” u/s.
195(1)(b(i) appear to encompass situations wherein false evidence
has been fabricated prior to being produced before a Court of law,
for the purpose of being used in proceedings before the Court –
The Construction of the words “in relation to” must be controlled G
by the overarching principle as stated in Patel Laljibhai Somabhai
and Sachida Nanda Singh, which was affirmed by the Constitution
Bench in Iqbal Singh Marwah – That is, even if the offence is
committed prior to giving of the fabricated evidence in the Court, it
must have a direct or reasonably close nexus with the court
proceedings. H
1022 SUPREME COURT REPORTS [2021] 2 S.C.R.
A Code of Criminal Procedure, 1973 – s.195(1)(b)(i) – Penal
Code, 1860 – s.193 – Whether the words “stage of a judicial
proceeding” under Explanation 2 to s.193, IPC can be equated
with “proceeding in any court” u/s.195(1)(b)(i), Cr.P.C. – Held:
The purpose of s.195(1)(b)(i), Cr.P.C., there must be an intention
on part of the alleged offender to directly mislead the Court into
B
forming a certain opinion by commission of offence u/s.193, IPC –
Though a criminal investigation is certainly a stage of a judicial
proceeding insofar as it may culminate in issue of process and trial
against the accused, it would not be a proceeding in relation to a
certain Court u/s.195(1)(b)(i), Cr.P.C. before the Court has even
C taken judicial notice of such investigation – The difference between
a “stage” of a judicial proceeding and the judicial proceeding itself
must be emphasized in this regard.
Code of Criminal Procedure, 1973 – s.195(1)(b)(i) and
s.195(1)(b)(ii) – Difference between – Held: There is a pertinent
D difference in the wording of s.195(1)(b)(i) and s.195(1)(b)(ii)
inasmuch as s.195(1)(b)(ii) is restricted to offences which are
committed in respect of a document which is “produced or given in
evidence in a proceeding in any court” – Whereas s.195(1)(b)(i)
applies to offences against public justice which are committed not
only in any proceeding in any court, but also “in relation to” such
E proceeding.
Dismissing the appeals, the Court
HELD: 1. General overview of the law on Section 195(1)
(b)(ii), Cr.P.C.
F 1.1 The issue of whether Section 195(1)(b) (ii), CrPC is
applicable to documents which are forged prior to their production
in Court is no longer res integra. This Court in Sachida Nand
Singh has held that Section 195(1)(b)(ii) read with Section 340(1),
CrPC will only apply in respect of offences which are committed
during the time when the document concerned was custodia legis
G or in the custody of the Court. [Para 7][1037-F-G]
1.2 The observations of the Supreme Court in Patel Laljibhai
Somabhai, as cited in Sachida Nand Singh, make the import and
purpose of Section 195(1)(b), CrPC clear. The provision is
H
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1023
intended to bar the right to initiate prosecution only where the A
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
B
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 C
long before the production of the document before the 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), this Court
finds that they have useful application in interpreting Section
D
195(1)(b)(i) as well. The prohibition contained in Section
195(1)(b)(i) should not be extended to provide protection to a
person who has been accused of tendering false evidence during
the investigative stage prior to becoming a party to the court
proceedings and producing such evidence before the Court. The
view taken in Sachida Nand Singh was subsequently affirmed by E
the Constitution Bench in Iqbal Singh Marwah. [Paras 7 and
8][1040-B-H]
1.3 Similar to Sachida Nand Singh, the Constitution Bench
also referred to the observations made by the three-Judge Bench
in Patel Laljibhai Somabhai on Sections 192(b) and 192(c) of the F
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 192(b) of the 1898 Code (corresponding
to Section 195(1)(b)(i), CrPC), the offence committed is one with
a “close nexus” to the court proceedings. [Para 8][1045-A-C] G
2. Import of the Words “in relation to” in Section 195(1)(b)
(i), CrPC.
2.1 The phrase “in relation to any proceeding in any Court”,
which appears in Section 195(1)(b)(i), CrPC but is absent in
H
1024 SUPREME COURT REPORTS [2021] 2 S.C.R.
A Section 195(1)(b)(ii). It may be argued that this phrase makes
the scope of Section 195(1)(b)(i) wider than Section 195(1)(b)(ii).
The words “in relation to” under Section 195(1)(b(i) appear to
encompass situations wherein false evidence has been fabricated
prior to being produced before a Court of law, for the purpose of
being used in proceedings before the Court. Therefore, it may
B
not be possible to apply the ratio of Iqbal Singh Marwah by
way of analogy to Section 195(1)(b)(i) in every case. [Para 9]
[1045-C-E]
2.2 The construction of the words “in relation to” must be
controlled by the overarching principle applicable to Section
C 195(1)(b), CrPC as stated in Patel Laljibhai Somabhai and Sachida
Nand Singh, which was affirmed by the Constitution Bench in
Iqbal Singh Marwah. 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.
D [Para 14][1049-B-C]
2.3 Looking to the decision in Bandekar Brothers, is true
to say that Section 195(1)(b)(i), CrPC may be attracted to the
offence of fabricating false evidence prior to its production before
the Court, provided that such evidence is led by a person who is
E 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
F 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. [Para 15][1049-C-E]
2.4 However, where a person fabricates false evidence for
G the purpose of misleading the investigating officer, this may not
have any direct nexus with the subsequent court proceedings.
There is an indirect nexus inasmuch as if the investigating agency
does not suspect any wrongdoing, and the Court commits the
case for trial, the evidence will be produced for the Court’s perusal
H
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1025
and impact the judicial decision-making process. However, it may A
be equally possible that even if the fabricated evidence appears
sufficiently convincing, the investigating agency may drop
proceedings against the accused and divert its time and resources
elsewhere. Therefore, the offence may never reach the stage of
court proceedings. Further, if it subsequently comes to light that
B
the evidence was falsely adduced, it will be the investigating
agency which will suffer loss of face and be forced to conduct a
fresh investigation. Hence, though the offence is one which affects
the administration of justice, it is the investigating agency, and
not the Court, which is the aggrieved party in such circumstance.
It is possible that Courts may be more pro-active in making C
complaints under Section 195(1)(b)(i), CrPC upon application
made by the concerned investigative agencies, than in those
preferred by private parties. The former being public authorities
would enjoy more credence in seeking inquiry into their claims.
Therefore, the reasons assigned by the Constitution Bench in
D
Iqbal Singh Marwah for adopting a narrow construction of Section
195(1)(b)(ii), CrPC may not be strictly applicable in the present
case. [Paras 16 and 17][1049-F-H; 1050-A; 1051-F-G]
2.5 Just like a private party who has been a victim of forgery
committed outside the precincts of the Court, the investigative
agency should not be left remediless against persons who have E
producing false evidence for the purpose of interfering with the
investigation process. [Para 17.1][1052-A-B]
2.6 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 F
alleged to have been falsified is not even present on its records.
Rather, it is the investigating agency which is best placed to verify
and prove whether such falsification has taken place, through
what means and for what purpose. [Para 17.2][1052-D-E]
2.7 The investigation agency cannot be compelled to take G
a chance and wait for the trial court to form its opinion in each
and every case. This may give the offender under Section 193,
IPC sufficient time to fabricate more falsehoods to hide the
H
1026 SUPREME COURT REPORTS [2021] 2 S.C.R.
A original crime. Further, irrespective of the potential impact that
such false evidence may have on the opinion formed by the trial
court, the investigating agency has a separate right to proceed
against the accused for attempting to obstruct fair and transparent
probe into a criminal offence. Thus, this Court is of the view that
it would be impracticable to insist upon lodging of written
B
complaint by the Court under Section 195(1)(b)(i), CrPC in such
a situation. [Para 17.3][1052-G-H; 1053-A]
3. Whether “stage of a judicial proceeding” under
Explanation 2 to Section 193, IPC is synonymous with
“proceeding in any court” under Section195(1)(b)(i),CrPC?
C
3.1 The purpose of Explanation 2 to Section 193, IPC is
evidently to ensure that a person who fabricates false evidence
before an investigating or inquiring authority prior to the trial of
the case does not escape penalty. This encompasses all nature of
proceedings, whether civil or criminal. However, whether the
D commission of such offence would require the complaint of a Court
under Section 195(1)(b)(i) would depend upon the authority before
whom such false evidence is given. For example, if a person gives
false evidence in an inquiry before the Magistrate under Section
200, CrPC, that would undoubtedly be an offence committed
E 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.
[Para 20.1][1054-F-H]
F 3.2 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
G 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
H forming a certain opinion by commission of offence under Section
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1027
193, IPC. Though a criminal investigation is certainly a stage of a A
judicial proceeding insofar as it may culminate in issue of process
and trial against the accused, it would not be a proceeding in
relation to a certain Court under Section 195(1)(b) (i), CrPC before
the Court has even taken judicial notice of such investigation.
The difference between a “stage” of a judicial proceeding and
B
the judicial proceeding itself must be emphasized in this regard.
[Para 20.2][1055-A-D]
3.3 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 C
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 D
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. [Para 22.1][1057-G-H; 1058-A]
3.4 Had this been a case wherein the Respondent had not E
developed any suspicion against Accused Nos. 2 and 3, and the
Trial Court had subsequently discovered the subterfuge caused
by them, we may have taken a different view. As this Court has
noted, where the fabrication of evidence has escaped the scrutiny
of the investigating agency, and the case is subsequently brought
to trial, such evidence would have direct bearing on the trial F
court’s opinion and hence the bar under Section 195(1)(b)(i),
CrPC may be applicable. However, in the present case, the
investigating agency has been sagacious enough to detect the
commission of offence under Section 193, IPC at the preliminary
stage. Therefore, as stated earlier, it would be unjust and G
impracticable to insist upon the requirement of an independent
inquiry and written complaint by the Trial Court in such a scenario.
[Para 22.3][1058-D-F]
H
1028 SUPREME COURT REPORTS [2021] 2 S.C.R.
A 3.5 Thus, the questions of law stated stand answered against
the Appellants/accused. Even on merits, there is no 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
B
search conducted at his house on 24.01.2001. The supposed
agreement of sale was also not produced. This defence was raised
by Accused Nos. 2 and 3 at a highly belated stage on 4.02.2002,
almost a year after the recovery of the seized currency, though
the Appellant had corresponded with Accused No. 2 in May-June,
C 2001. It is improbable in the ordinary course of conduct that a
person would wait so long to claim an amount of approximately
Rs. 80 lakhs which was required for completion of sale transaction.
The stamp paper on which the sale deed was made was also proved
to be illegal. Hence it is apparent that the Appellants/accused
entered into an elaborate conspiracy and attempted to create a
D
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
E offence, no further benefit can be granted to them in this regard.
[Para 23][1058-F-H; 1059-A-C]
Iqbal Singh Marwah and Another v. Meenakshi Marwah
and Another, (2005) 4 SCC 370 : [2005] 2 SCR 708 –
followed.
F Sachida Nand Singh and Another v. State of Bihar and
Another, (1998) 2 SCC 493 : [1998] 1 SCR 492; Patel
Laljibhai Somabhai AIR 1971 SC 1935 – relied on.
Arvindervir Singh v. State of Punjab and Another,
(1998) 6 SCC 352 : [1998] 3 SCR 1004; Lalji Haridas
G v. State of Maharashtra, (1964) 6 SCR 700; Babita Lila
and Another v. Union of India, (2016) 9 SCC 647 :
[2016] 7 SCR 604; Chandrapal Singh and Others v.
Maharaj Singh and Another, (1982) 1 SCC 466 –
distinguished.
H
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1029
Bandekar Brothers Pvt. Ltd. and Another v. Prasad A
Vassudev Keni and Others, AIR 2020 SC 4247; State
of Punjab v. Jasbir Singh, (2020) 12 SCC 96 : 2020
(2) JT 469; Surjit Singh and Others v. Balbir Singh,
(1996) 3 SCC 533 : [1996] 3 SCR 70; Kailash Mangal
v. Ramesh Chand (Dead) Through Legal Representative,
B
(2015) 15 SCC 729 : [2015] 2 SCALE 615; Narendra
Kumar Srivastava v. State of Bihar and Others, (2019)
3 SCC 318 : [2019] 2 SCR 643; Punjab and Haryana
High Court Bar Association, Chandigarh Through its
Secretary v. State of Punjab and Others, (1994) 1 SCC
616 : [1993] 3 Suppl. SCR 915; Punjab & Haryana C
High Court Bar Association v. State of Punjab and
Others, (1996) 4 SCC 742 : [1996] 2 Suppl. SCR 787
– referred to.
Case Law Reference
[2005] 2 SCR 708 followed Para 3.3 D
[1998] 1 SCR 492 relied on Para 3.4
AIR 1971 SC 1935 relied on Para 7
[1996] 3 SCR 70 referred to Para 8
E
[2019] 2 SCR 643 referred to Para 11
[1998] 3 SCR 1004 distinguished Para 19
[1993] 3 Suppl. SCR 915 referred to Para 19
[1996] 2 Suppl. SCR 787 referred to Para 19
F
[1964] 6 SCR 700 distinguished Para 21
[2016] 7 SCR 604 distinguished Para 21.1
(1982) 1 SCC 466 distinguished Para 21.2
CRIMINAL APPEAL JURISDICTION: Criminal Appeal No.
G
305 of 2021
From the Judgment and Order dated 06.01.2020 of the High Court
of Judicature at Madras in CRL.A.No. 1089 of 2007.
H
1030 SUPREME COURT REPORTS [2021] 2 S.C.R.
A With
Criminal Appeal No. 306 and 307 of 2021
Basva Prabhu Patil, Sr. Adv., Amit Anand Tiwari, Ms. Shakun
Sharma, Kushagr Pandey, Ms. Devyani Gupta, B. Karunakaran, Anoop
Prakash Awasthi, S. Gowthaman, Advs. for the Appellant.
B
Ms. Aishwarya Bhati, ASG., Arvind Kumar Sharma, Advs. for
the Respondent.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
C
1. Leave granted.
2. These appeals arise out of judgment dated 6.01.2020 in Crl. A.
Nos. 1089, 1090 and 1091 of 2007 passed by the High Court of Judicature
at Madras (“High Court”). Since they involve common facts and question
of law, appeal arising out of S.L.P. (Crl.) No. 5102 of 2020 shall be
D
taken as the leading case.
3. The brief facts leading to this appeal are as follows:
3.1 The Appellant/Accused No. 1 was working as Regional
Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd. On
E 4.01.2001 case was registered against the Appellant under Section 120B
read with Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860
(“IPC”); and Section 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988 (“PC Act”). Subsequently, the officers of the
Respondent investigative agency conducted search at the Appellant’s
residence on 24.01.2001 on the basis of search warrant issued by the
F Special Judge, Tis Hazari Court, New Delhi. During the course of this
search, an amount of Rs. 79,65,900/- (“seized currency”), in addition to
jewellery and property papers, was seized from the Appellant’s residence.
Since these assets were found to be disproportionate to the Appellant’s
known sources of income, on 9.03.2001 a separate disproportionate assets
G case was registered against him under Section 13(2) read with 13(1)(e)
of the PC Act. It is this case that forms the factual crux of the present
appeal.
3.2 During the course of investigation, Accused No. 2 V.S.
Krishnan (Appellant in the connected appeal arising out of S.L.P. (Crl.)
H No. 6720 of 2020) and Accused No. 3 Murugesan (Appellant in the
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1031
[MOHAN M. SHANTANAGOUDAR, J.]
connected appeal arising out of S.L.P. (Crl.) No. 6327 of 2020) wrote A
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 Rs 80 lakhs was to be paid in advance. Since Accused
B
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. C
Hence Accused Nos. 2 and 3 sought recovery of the seized currency.
Accused No. 2 produced the purported sale deed dated 24.01.2001
(in duplicate) typed out on stamp paper before the Investigating Officer
in support of their claim. He also produced certain books of accounts to
show that he had financial capacity to purchase the properties from D
Accused No. 3, in which entry was made on 20.01.2001 pertaining to
payment of advance price of Rs 80 lakhs to Accused No. 3. However,
pertinently, the Appellant had not taken any such defence at the time of
search conducted in his house on 24.01.2001, nor had he produced the
duplicate sale deed before the officers of the Respondent agency at that
time. E
3.3 Investigation conducted by the Respondent revealed that the
market value fixed by the State Government in respect of the two
properties described in sale deed dated 24.01.2001, was much below Rs
80 lakhs. Further, that the first property was equitably mortgaged with
the Tamil Nadu Mercantile Bank Ltd. since 4.9.1998; whereas a portion F
of the second property had already been sold to other persons. That the
license of Accused No. 4 stamp vendor S. Mohankumar, through whom
the stamp papers of the sale deed were issued on 11.01.2001, was
cancelled on 7.10.1992. No stamp paper of any denomination had been
issued to him during the period of 1998 to 2001. Therefore, the G
Respondent’s claim is that the Appellant conspired with Accused Nos.
2-4 to fabricate false deed of agreement for sale for the purpose of
being shielded from legal action in the disproportionate assets case.
Accordingly, the Learned Additional Special Judge for CBI Cases,
Chennai (“Trial Court”) framed charges against the Appellant and
Accused Nos. 2-4 under Section 120B read with Section 193 of the H
1032 SUPREME COURT REPORTS [2021] 2 S.C.R.
A IPC, in addition to charges under the PC Act already framed against the
Appellant. Accused No. 4 died during the pendency of trial.
No objection was raised by the accused at the stage of taking of
cognizance. However, during the course of trial, the Accused argued
that complaint under Section 195(1)(b) of the Code of Criminal Procedure,
B 1973 (“CrPC”) was necessary for prosecuting the case under Section
193, IPC. The Trial Court rejected this argument by referring to the
opinion of the Constitution Bench in Iqbal Singh Marwah and Another
v. Meenakshi Marwah and Another, (2005) 4 SCC 370. Furthermore,
based on the evidence on the record, the Trial Court found that it was
not proved that Accused No. 2 had entrusted the seized currency to the
C Appellant for holding in escrow till completion of sale transaction by
Accused No. 3. Hence, the Trial Court convicted the Appellant under
Section 13(2) read with Section 13(1)(e) of the PC Act; as well as Sections
120B and 193 of the IPC, and sentenced him to rigorous imprisonment
for two years and payment of fine of Rs 1.5 lakhs. Accused Nos. 2 and
D 3 were convicted under Sections 120B and 193 of IPC and sentenced to
rigorous imprisonment for one year and payment of fine of Rs 1 lakh
each.
3.4 In appeal before the High Court, Accused Nos. 2 and 3
reiterated that the requirements of Sections 195(1)(b)(i) and 340 of the
E 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
F are custodia legis. Thus, the offence must be committed after a
document is produced in evidence before the Court. Therefore Sections
195(1)(b)(i) and 340, CrPC will not be applicable in the present case
where documents were fabricated during the investigative phase prior
to their production during before the Trial Court.
G The High Court relied upon the decision of a three-Judge Bench
of this Court in Sachida Nand Singh and Another v. State of Bihar
and Another, (1998) 2 SCC 493, and the later Constitution Bench decision
in Iqbal Singh Marwah (supra) which affirmed the view taken in
Sachida Nand Singh, while laying down its opinion. Though these
H decisions were rendered in the context of interpreting Section 195(1)(b)(ii)
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1033
[MOHAN M. SHANTANAGOUDAR, J.]
of the CrPC, the High Court held that Section 195(1)(b)(i) is analogous A
to the former provision. Hence the observations made in the
aforementioned decisions are equally applicable to the present case. On
merits, the High Court confirmed the Trial Court’s finding that the
Accused had conspired to fabricate false evidence for shielding Appellant/
Accused No. 1 from prosecution in the disproportionate assets case.
B
However, taking into consideration the advanced age of the Accused
and the long passage of time since taking of cognizance of the case, the
sentences awarded to the Accused were reduced. Nevertheless, the
Accused have come before us in the present appeals challenging the
impugned judgment of the High Court.
4. Learned senior counsel Mr. Basava Prabhu Patil, and learned C
counsel Mr. Amit Anand Tiwari and Mr. B. Karunakaran appearing for
the Appellants/Accused, have forcefully argued that Section 195(1)(b)(i),
CrPC cannot be construed as analogous to Section 195(1)(b)(ii).
Therefore, the holding of the Constitution Bench in Iqbal Singh Marwah
(supra) will not be applicable to the present case. They have relied upon D
Bandekar Brothers Pvt. Ltd. and Another v. Prasad Vassudev Keni
and Others, AIR 2020 SC 4247 in support of their contentions. Thus,
they have stressed that there is an absolute bar against taking of
cognizance for the offences specified under Section 195(1)(b)(i), CrPC
by any means except upon written complaint by the concerned Court.
This is even if the offence of giving false evidence under Section 193, E
IPC was allegedly committed prior to proceedings before a Court of
law. Therefore, the prosecution lodged by the Respondent agency against
the Accused under Section 193, IPC is unsustainable.
4.1 Per contra, learned Additional Solicitor General appearing for
the Respondent, Ms. Aishwarya Bhati, has contended that the holding in F
Iqbal Singh Marwah is applicable in respect of 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. G
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. H
1034 SUPREME COURT REPORTS [2021] 2 S.C.R.
A (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
B relation to, any proceeding in any Court,
or
(ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of the said Code, when
such offence is alleged to have been committed in respect of a
C document produced or given in evidence in a proceeding in any
Court,
or
(iii) of any criminal conspiracy to commit, or attempt to commit,
D 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
by such officer of the Court as that Court may authorise in writing
in this behalf, or of some other Court to which that Court is
subordinate.
xxx
E
(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.”
F (emphasis supplied)
It is well settled that Section 195(1)(b) creates a bar against taking
cognizance of offences against the administration of justice for the
purpose of guarding against baseless or vindictive prosecutions by private
parties. The provisions of this Section imply that the Court is the only
G appropriate authority which is entitled to raise grievance in relation to
perjury, forgery of documents produced before the Court, and other
offences which interfere with the effective dispensation of justice by
the Court. Hence, it for the Court to exercise its discretion and consider
the suitability of making a complaint for such offences. However, there
is a pertinent difference in the wording of Section 195(1)(b)(i) and Section
H 195(1)(b)(ii) inasmuch as Section 195(1)(b)(ii) is restricted to offences
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1035
[MOHAN M. SHANTANAGOUDAR, J.]
which are committed in respect of a document which is “produced or A
given in evidence in a proceeding in any court”. Whereas Section
195(1)(b)(i) applies to offences against public justice which are committed
not only in any proceeding in any court, but also “in relation to” such
proceeding. Whether such semantical difference bars the analogous
application of precedents relating to Section 195(1)(b)(ii) for interpreting
B
Section 195(1)(b)(i) will be discussed by us later.
5.1 Section 340, CrPC prescribes the procedure to be followed
for recording a complaint under Section 195(1)(b):
“340. Procedure in cases mentioned in section 195.—(1)
When upon an application made to it in this behalf or otherwise C
any Court is of opinion that it is expedient in the interest of justice
that an inquiry should be made into any offence referred to in
clause (b) of 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, D
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; E
(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
F
(e) bind over any person to appear and give evidence before such
Magistrate.
xxx
(4) In this section, “Court” has the same meaning as in section
195.” G
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 H
1036 SUPREME COURT REPORTS [2021] 2 S.C.R.
A complaint under Section 195, for consideration of a larger Bench.
Therefore, we shall be limiting our findings to the issue of whether written
complaint by the Trial Court was required under Section 195(1)(b)(i),
CrPC in the present case, without delving extensively into the aspect of
whether preliminary inquiry was required to be conducted prior to such
complaint.
B
5.2 We also find it necessary to consider Sections 192 and 193 of
the IPC for the purpose of deciding this matter. Both fall under Chapter
XI, under the heading “Of False Evidence and Offences Against Public
Justice”, of the IPC.
C “192. Fabricating false evidence. Whoever causes any
circumstance to exist or makes any false entry in any book or
record, or electronic record or makes any document or electronic
record containing a false statement, intending that such
circumstance, false entry or false statement may appear in evidence
in a judicial proceeding, or in a proceeding taken by law before a
D public servant as such, or before an arbitrator, and that such
circumstance, false entry or false statement, so appearing in
evidence, may cause any person who in such proceeding is to
form an opinion upon the evidence, to entertain an erroneous
opinion touching any point material to the result of such proceeding,
E is said “to fabricate false evidence”.
xxx
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
F stage of a judicial proceeding, shall be punished with imprisonment
of either description for a term which may extend to seven years,
and shall also be liable to fine…
Explanation 2: An investigation directed by law preliminary to a
proceeding before a Court of Justice, is a stage of a judicial
G proceeding, though that investigation may not take place before a
Court of Justice.”
In the present case, the allegation against Accused Nos. 2 and 3
is that they colluded with Appellant/Accused No. 1 to create a false sale
deed, and gave false explanation of escrow arrangement amongst the
H three parties, to justify how the seized currency came to be in the
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1037
[MOHAN M. SHANTANAGOUDAR, J.]
Appellant’s possession. This was done to exonerate the Appellant/ A
Accused No. 1 and recover the seized currency at the stage of
investigation itself, which is deemed to be “a stage of a judicial
proceeding” under Explanation 2 of Section 193. Had the genuineness
of the sale deed been accepted, the Respondent may have erroneously
opined that the seized currency belonged to Accused No. 2, and
B
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, C
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 D
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 E
any court” under Section 195(1)(b)(i), CrPC?
I. General overview of the law on Section 195(1)(b)(ii)
7. Before answering the questions stated in paragraph 6 (supra),
it may be useful to refer to the landmark precedents of this Court which F
have considered similar issues arising under Section 195(1)(b)(ii), CrPC.
The issue of whether Section 195(1)(b) (ii), CrPC is applicable to
documents which are forged prior to their production in Court is no longer
res integra. This Court in Sachida Nand Singh (supra) has held that
Section 195(1)(b)(ii) read with Section 340(1), CrPC will only apply in
respect of offences which are committed during the time when the G
document concerned was custodia legis or in the custody of the Court.
The reasoning given by the Court was as follows:
“5. The contention of the appellants is that if the offence alleged
is with respect to a document which reached the Court then the
aforesaid bar operates, no matter whether the offence was H
1038 SUPREME COURT REPORTS [2021] 2 S.C.R.
A committed before or after its production in court. In other words,
according to the appellants, the decisive event for attracting the
bar is the production of the document in the Court.
xxx
7. Even if the clause is capable of two interpretations we are
B inclined to choose the narrower interpretation for obvious reasons.
Section 190 of the Code empowers “any magistrate of the first
class” to take cognizance of “any offence” upon receiving a
complaint, or police report or information or upon his own
knowledge. Section 195 restricts such general powers of the
C magistrate, and the general right of a person to move the court
with a complaint is to that extent curtailed. It is a well-recognised
canon of interpretation that provision curbing the general jurisdiction
of the court must normally receive strict interpretation unless the
statute or the context requires otherwise (Abdul Waheed Khan v.
Bhawani [AIR 1966 SC 1718: (1966) 3 SCR 617]).
D
8. That apart it is difficult to interpret Section 195(1) (b)(ii) as
containing a bar against initiation of prosecution proceedings merely
because the document concerned was produced in a court albeit
the act of forgery was perpetrated prior to its production in the
Court. Any such construction is likely to ensue unsavoury
E consequences. For instance, if rank forgery of a valuable document
is detected and the forgerer is sure that he would imminently be
embroiled in prosecution proceedings he can simply get that
document produced in any 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
F
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
G
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
H administration of justice.
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1039
[MOHAN M. SHANTANAGOUDAR, J.]
11. The scope of the preliminary enquiry envisaged in Section A
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
B
legis.
12. It would be a strained thinking that any offence involving forgery
of a document if committed far outside the precincts of the Court
and long before its production in the Court, could also be treated
as one affecting administration of justice merely because that
document later reached the court records. C
13. The three-Judge Bench of this Court in Patel Laljibhai
Somabhai case [(1971) 2 SCC 376 : 1971 SCC (Cri) 548 : AIR
1971 SC 1935] has interpreted the corresponding section in the
old Code, [Section 195(1)(c)] in almost the same manner as
indicated above… D
…The issue involved in Patel Laljibhai Somabhai case [(1971)
2 SCC 376 : 1971 SCC (Cri) 548 : AIR 1971 SC 1935] related to
the applicability of that sub- section to a case where forged
document was produced in a suit by a party thereto, and
subsequently a prosecution was launched against him for offences E
under Sections 467 and 471 of IPC through a private complaint.
The ratio of the decision therein is the following: (SCC Headnote)
“The offences about which the court alone is clothed with the
right to complain may, therefore, be appropriately considered to
be only those offences committed by a party to a proceeding in F
that court, the commission of which has a reasonably close nexus
with the proceedings in that court so that it can without embarking
upon a completely independent and fresh inquiry, satisfactorily
consider by reference principally to its records the expediency of
prosecuting the delinquent party. It, therefore, appears to be more
appropriate to adopt the strict construction of confirming the G
prohibition contained in Section 195(1)(c) only to those cases in
which the offences specified therein were committed by a party
to the proceeding in the character as such party.”
14. After stating so their Lordships proceeded to observe that the
legislature could not have intended to extend the prohibition in the H
1040 SUPREME COURT REPORTS [2021] 2 S.C.R.
A sub-section to offences committed by a party to the proceedings
prior to his becoming such a party. According to their Lordships,
any construction to the contrary would unreasonably restrict the
right of a person which was recognized in Section 190 of the
Code.” (emphasis supplied)
B Aforementioned observations of this Court in Patel Laljibhai
Somabhai (supra), as cited in Sachida Nand Singh (supra), make the
import and purpose of Section 195(1)(b), CrPC clear. The provision is
intended to bar the right to initiate prosecution only where the offence
committed has a reasonably close nexus with the court proceedings,
such that the Court can independently determine the need for an inquiry
C
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
D 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,
E
3) at a time long before the production of the document before
the Court.
The same would not have a “reasonably close nexus” with the
court proceedings.
F Though these observations in Sachida Nand Singh were made
in the context of Section 195(1)(b)(ii), we find that they have useful
application in interpreting Section 195(1)(b)(i) as well. The prohibition
contained in Section 195(1)(b)(i) should not be extended to provide
protection to a person who has been accused of tendering false evidence
G during the investigative stage prior to becoming a party to the court
proceedings and producing such evidence before the Court.
8. The view taken in Sachida Nand Singh was subsequently
affirmed by the Constitution Bench in Iqbal Singh Marwah (supra). In
that case, it was alleged that the appellants had created a fictitious will
H to divest the respondents out of their share in the disputed property.
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1041
[MOHAN M. SHANTANAGOUDAR, J.]
Since the respondents’ application under Section 340, CrPC was not A
disposed of, they filed a criminal complaint for prosecuting the appellants
under Sections 192 and 193, as well as Sections 463 and 471, IPC. The
Metropolitan Magistrate in that case held that both Sections 195(1)(b)(i)
and (ii), CrPC operated as a bar against taking cognizance of these
offences. The Sessions Judge and the High Court, relying on Sachida
B
Nand Singh, held that the bar under Section 195(1)(b)(ii) would not
apply where forgery of a document was committed before producing
the said document in court. However, it was noticed that Sachida Nand
Singh appeared to conflict with an earlier three-Judge Bench decision
in Surjit Singh and Others v. Balbir Singh, (1996) 3 SCC 533. Surjit
Singh had held that the bar against taking cognizance under Section C
195(1)(b)(ii) would apply even if the offences stipulated therein were
committed prior to production of the document before the Court, if such
document was subsequently produced before the Court. The Constitution
Bench clarified the position of law as follows:
“10…This being the scheme of two provisions or clauses of Section D
195 viz. that the offence should be such which has direct bearing
or affects the functioning or discharge of lawful duties of a public
servant or has a direct correlation with the proceedings in a court
of justice, the expression “when such offence is alleged to have
been committed in respect of a document produced or given in
E
evidence in a proceeding in any court” occurring in clause (b)(ii)
should normally mean commission of such an offence after the
document has actually been produced or given in evidence in the
court. The situation or contingency where an offence as
enumerated in this clause has already been committed earlier and
later on the document is produced or is given in evidence in court, F
does not appear to be in tune with clauses (a)(i) and (b)(i) and
consequently with the scheme of Section 195 CrPC. This indicates
that clause (b)(ii) contemplates a situation where the offences
enumerated therein are committed with respect to a document
subsequent to its production or giving in evidence in a proceeding G
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
H
1042 SUPREME COURT REPORTS [2021] 2 S.C.R.
A 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.
B 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
C the scope of the aforesaid provision and held, that clause (c) of
Section 195(1) applies only to cases where an offence is
committed by a party, as such, to a proceeding to any court in
respect of a document which has been produced or given in
evidence in such proceeding. It was held that an offence which
has already been committed by a person who does not become a
D party till, say, 30 years after the commission of the offence, cannot
be said to have been committed by a party within the meaning of
clause (c). A three-Judge Bench of this Court in Patel Laljibhai
Somabhai v. State of Gujarat after examination of the
controversy in considerable detail observed that as a general rule
E the courts consider it expedient in the interest of justice to start
prosecutions as contemplated by Section 476 (of the old Code
which now corresponds to Section 340 CrPC) only if there is a
reasonable foundation for the charge and there is a reasonable
likelihood of conviction. The requirement of a finding as to the
expediency is understandable in case of an offence alleged to
F have been committed either in or in relation to a proceeding in
that court in case of offences specified in clause (b) [of the old
Code corresponding to clause (b)(i) CrPC] because of the close
nexus between the offence and the proceeding. In case of offences
specified in clause (c), they are required to be committed by a
G party to a proceeding in that court with respect to a document
produced or given in evidence in that court. The court approved
the view taken by the Allahabad High Court in Emperor v. Kushal
Pal Singh and held as under in para 7 of the Report: (Patel
Laljibhai Somabhai case [(1971) 2 SCC 376 : 1971 SCC (Cri)
548] , SCC pp.376-77)
H
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1043
[MOHAN M. SHANTANAGOUDAR, J.]
“(i) The underlying purpose of enacting Sections 195(1)(b) and A
(c) and Section 476 seems to be to control the temptation on the
part of the private parties to start criminal prosecution on frivolous
vexations or insufficient grounds inspired by a revengeful desire
to harass or spite their opponents. These offences have been
selected for the court’s control because of their direct impact on
B
the judicial process. It is the judicial process or the administration
of public justice which is the direct and immediate object or the
victim of these offences. As the purity of the proceedings of the
court is directly sullied by the crime, the court is considered to be
the only party entitled to consider the desirability of complaining
against the guilty party. The private party who might ultimately C
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 D
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 E
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 F
extensively from Patel Laljibhai. Reference was then made to
Sanmukhsingh v. R. [AIR 1950 PC 31: 51 Cri LJ 651] and Sushil
Kumar v. State of Haryana [1987 Supp SCC 654: 1988 SCC
(Cri) 136 : AIR 1988 SC 419] wherein it has been held that the
bar of Section 195 would not apply if the original document had
not been produced or given in evidence in court. Then comes the G
passage in the judgment (para 10 of the Report) which we have
reproduced in the earlier part of our judgment. The observations
therein should not be understood as laying down anything contrary
to what has been held in Patel Laljibhai but was made in the
context that bar contained in Section 195(1)(b)(ii) would not be H
1044 SUPREME COURT REPORTS [2021] 2 S.C.R.
A attracted unless the original document was filed. It is for this reason
that in the very next paragraph, after observing that the cognizance
had been taken prior to filing of the civil suit and the original
agreement in court, the view taken by the High Court that the
Magistrate could proceed with the trial of the criminal case was
upheld and the appeal was dismissed.
B
20. Since the object of deletion of the words “by a party to any
proceeding in any court” occurring in Section 195(1)(c) of the old
Code is to afford protection to witnesses also, the interpretation
placed on the said provision in the earlier decisions would still hold
good.
C
33. In view of the discussion made above, we are of the opinion
that Sachida Nand Singh has been correctly decided and the
view taken therein is the correct view. Section 195(1)(b)(ii) CrPC
would be attracted only when the offences enumerated in the
said provision have been committed with respect to a document
D after it has been produced or given in evidence in a proceeding in
any court i.e. during the time when the document was in custodia
legis.” (emphasis supplied)
Curiously, though the facts of Iqbal Singh Marwah also required
a determination as to the applicability of Section 195(1)(b)(i), the
E Constitution Bench did not express any specific finding on this point.
This was perhaps because the limited point for consideration before the
Bench was the apparent conflict between Sachida Nand Singh and
Surjit Singh (supra). However, it can nevertheless be seen that the
Constitution Bench did not interpret Section 195(1)(b)(ii) in isolation, but
F linked its construction with the overall scheme under Sections 195(1)(b)
and 340, CrPC. The Court reiterated the test laid down in Sachida
Nand Singh, i.e., that the offence in respect of which 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
G 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
H had held on the facts of that case, that since the criminal Court had
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1045
[MOHAN M. SHANTANAGOUDAR, J.]
taken cognizance of the offence long before filing of the original document A
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 B
Section 192(1)(b)(i) and (ii) of the present CrPC respectively. This Court
in Patel Laljibhai Somabhai had noted that even under Section 192(b)
of the 1898 Code (corresponding to Section 195(1)(b)(i), CrPC), the
offence committed is one with a “close nexus” to the court proceedings.
II. Import of the Words “in relation to” in Section 195(1)(b) C
(i), CrPC.
9. This brings us to the phrase “in relation to any proceeding in
any Court”, which appears in Section 195(1)(b)(i), CrPC but is absent
in Section 195(1)(b)(ii). It may be argued that this phrase makes the
scope of Section 195(1)(b)(i) wider than Section 195(1) (b)(ii). The words D
“in relation to” under Section 195(1)(b)(i) appear to encompass situations
wherein false evidence has been fabricated prior to being produced
before a Court of law, for the purpose of being used in proceedings
before the Court. Therefore, it may not be possible to apply the ratio of
Iqbal Singh Marwah by way of analogy to Section 195(1)(b)(i) in every
case. E
10. For further elucidation on this point, we may turn to the recent
decision of this Court in Bandekar Brothers (supra). The appellants in
that case claimed that the respondents/accused had given false evidence
and forged debit notes and books of accounts in civil court proceedings
between the parties. They had initially filed application under Section F
340, CrPC before the relevant Judicial Magistrate. However, they later
sought to convert this into private complaints, in reliance upon Iqbal
Singh Marwah (supra). The respondents objected on the ground that
the bar under Section 195(1)(b)(i) could not be circumvented.
Subsequently, the appellants took the plea that offences under Section G
195(1)(b)(ii) were also made out:
“13. The point forcefully argued by the learned Counsel on behalf
of the Appellants is that his clients, being victims of forgery, ought
not to be rendered remediless in respect of the acts of forgery
which are committed before they are used as evidence in a court
H
1046 SUPREME COURT REPORTS [2021] 2 S.C.R.
A proceeding, and that therefore, a private complaint would be
maintainable in the fact circumstance mentioned in the two criminal
complaints referred to hereinabove. The Court has thus to steer
between two opposite poles of a spectrum the “yin” being the
protection of a person from frivolous criminal complaints, and the
“yang” being the right of a victim to ventilate his grievance and
B
have the Court try the offence of forgery by means of a private
complaint. In order to appreciate whether this case falls within
the category of avoiding frivolous litigation, or whether it falls
within the individual’s right to pursue a private complaint, we must
needs refer to several decisions of this Court.”
C 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
D 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:
E
“19. At this stage, it is important to understand the difference
between the offences mentioned in Section 195(1)(b)(i) and Section
195(1)(b)(ii) of the Code of Criminal Procedure. Where the facts
mentioned in a complaint attracts the provisions of Section 191 to
193 of the Indian Penal Code, Section 195(1)(b)(i) of the Code of
F Criminal Procedure applies. What is important is that once these
Sections of the Indian Penal Code are attracted, the offence should
be alleged to have been committed in, or in relation to, any
proceeding in any Court. Thus, what is clear is that the offence
punishable under these Sections does not have to be committed
G only in any proceeding in any Court but can also be an offence
alleged to have been committed in relation to any proceeding in
any Court.
22. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) of
the Code of Criminal Procedure speaks of offences described in
H Section 463, and punishable under Sections 471, 475 or 476 of the
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1047
[MOHAN M. SHANTANAGOUDAR, J.]
Indian Penal Code, when such offences are alleged to have been A
committed in respect of a document produced or given in evidence
in a proceeding in any Court. What is conspicuous by its absence
in Section 195(1)(b)(ii) are the words “or in relation to”, making it
clear that if the provisions of Section 195(1)(b)(ii) are attracted,
then the offence alleged to have been committed must be
B
committed in respect of a document that is custodia legis, and
not an offence that may have occurred prior to the document
being introduced in court proceedings. Indeed, it is this distinction
that is vital in understanding the sheet anchor of the Appellant’s
case namely, this Court’s judgment in Iqbal Singh Marwah
(supra).” (emphasis supplied) C
10.2 We fully agree with the aforementioned reasoning. 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 D
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 E
course of the court proceedings, it was certainly committed “in relation
to” such proceedings.
11. Similar circumstances were present in Kailash Mangal v.
Ramesh Chand (Dead) Through Legal Representative, (2015) 15
SCC 729 and Narendra Kumar Srivastava v. State of Bihar and F
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 G
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 H
1048 SUPREME COURT REPORTS [2021] 2 S.C.R.
A 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)
B 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 have
been committed “in relation to” such proceeding for the purpose of
Section 195(1)(b)(i), CrPC. The requirement of reasonable nexus
between the offence and the proceeding before the Court was clearly
C
satisfied in that case.
11.1 In Narendra Kumar Srivastava (supra), the appellant had
filed a private complaint contending that the respondent officials had
produced a false show-cause affidavit in the contempt petition filed by
the appellant. Resultantly, the High Court dropped the contempt case.
D The Division Bench held that Section 195(1)(b)(i), CrPC covers a different
category of offence and is therefore distinct from Section 195(1)(b)(ii).
Hence Sachida Nand Singh (supra) would not be applicable, and
cognizance could not have been taken on the basis of a private complaint.
However, on the facts of that case, this was again a situation wherein at
E the first instance, the Court was allegedly persuaded to form an opinion
based on certain false evidence which was produced by persons who
were already party to the proceedings. This is a completely different
factual matrix from the present case.
12. Indeed, at this juncture it must be noted that even Sachida
F Nand Singh (supra) and Iqbal Singh Marwah (supra) were rendered
in the context of balancing the right of private parties to initiate complaints
in respect of forged documents, with protecting parties to civil suits from
frivolous or vexatious prosecutions. In neither of the abovementioned
decisions has this Court authoritatively considered the specific issue of
preserving the right of an investigative agency, such as the Respondent
G in the present case, to initiate complaints against persons who have
fabricated false evidence during the course of criminal proceedings.
13. The moot point therefore, as mentioned in Para Nos. 6 & 6.1,
is whether offence committed under Section 193, IPC during the stage
of investigation, prior to commencement of proceedings before the Trial
H Court, by a person who is not yet party to proceedings before the Trial
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1049
[MOHAN M. SHANTANAGOUDAR, J.]
Court, is an offence committed “in relation to” such proceedings for A
the purpose of the bar under Section 195(1)(b)(i), CrPC?
14. The construction of the words “in relation to” must be
controlled by the overarching principle applicable to Section 195(1)(b),
CrPC as stated in Patel Laljibhai Somabhai (supra) and Sachida Nand
Singh (supra), which was affirmed by the Constitution Bench in Iqbal B
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 C
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 D
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, E
for the purpose of causing the Court to form an erroneous opinion
on a point material to the result of the proceedings.
16. However, where a person fabricates false evidence for the
purpose of misleading the investigating officer, this may not have any
direct nexus with the subsequent court proceedings. There is an indirect F
nexus inasmuch as if the investigating agency does not suspect any
wrongdoing, and the Court commits the case for trial, the evidence will
be produced for the Court’s perusal and impact the judicial
decision-making process. However, it may be equally possible that even
if the fabricated evidence appears sufficiently convincing, the
G
investigating agency may drop proceedings against the accused and divert
its time and resources elsewhere. Therefore, the offence may never
reach the stage of court proceedings. Further, if it subsequently comes
to light that the evidence was falsely adduced, it will be the investigating
agency which will suffer loss of face and be forced to conduct a fresh
investigation. Hence, though the offence is one which affects the H
1050 SUPREME COURT REPORTS [2021] 2 S.C.R.
A administration of justice, it is the investigating agency, and not the Court,
which is the aggrieved party in such circumstance.
17. In this regard, we consider it beneficial to refer to the portion
of the opinion expressed by the Constitution Bench in Iqbal Singh
Marwah (supra) as to why a narrow interpretation of Section
B 195(1)(b)(ii), CrPC was necessary to avoid impracticality or injustice in
its implementation:
“23…Before filing of the complaint, the court may hold a
preliminary enquiry and record a finding to the effect that it is
expedient in the interests of justice that enquiry should be made
C into any of the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court by weighing not
the magnitude of injury suffered by the person affected by such
forgery or forged document, but having regard to the effect or
impact, such commission of offence has upon administration of
justice. It is possible that such forged document or forgery may
D 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
E 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
remediless. Any interpretation which leads to a situation where a
F 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
G 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
H adjourn the hearing of the case if it is brought to its notice that an
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1051
[MOHAN M. SHANTANAGOUDAR, J.]
appeal is pending against the decision arrived at in the judicial A
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-consuming.
It is also to be noticed that there is no provision of appeal against
B
an order passed under Section 343(2), whereby hearing of the
case is adjourned until the decision of the appeal. These provisions
show that, in reality, the procedure prescribed for filing a complaint
by the court is such that it may not fructify in the actual trial of the
offender for an unusually long period. Delay in prosecution of a
guilty person comes to his advantage as witnesses become C
reluctant to give evidence and the evidence gets lost. This important
consideration dissuades us from acceptingthe broad interpretation
sought to be placed upon clause (b)(ii).
xxx
26. Judicial notice can be taken of the fact that the courts are D
normally reluctant to direct filing of a criminal complaint and such
a course is rarely adopted. It will not be fair and proper to give an
interpretation which leads to a situation where a person alleged to
have committed an offence of the type enumerated in clause (b)(ii)
is either not placed for trial on account of non-filing of a complaint E
or if a complaint is filed, the same does not come to its logical end.
Judging from such an angle will be in consonance with the principle
that an unworkable or impracticable result should be avoided…”
(emphasis supplied)
It is possible that Courts may be more pro-active in making F
complaints under Section 195(1)(b)(i), CrPC upon application made by
the concerned investigative agencies, than in those preferred by private
parties. The former being public authorities would enjoy more credence
in seeking inquiry into their claims. Therefore, the aforementioned reasons
assigned by the Constitution Bench in Iqbal Singh Marwah for adopting G
a narrow construction of Section 195(1)(b)(ii), CrPC may not be strictly
applicable in the present case. However, the general principles of statutory
interpretation laid down by the Constitution Bench should not be
disregarded. This is especially given that the Court did not consider
Section 195(1)(b)(ii) separately but provided a holistic view of the scheme
under Section 195(1)(b). H
1052 SUPREME COURT REPORTS [2021] 2 S.C.R.
A 17.1 Just like a private party who has been a victim of forgery
committed outside the precincts of the Court, the investigative agency
should not be left remediless against persons who have producing false
evidence for the purpose of interfering with the investigation process.
Moreover, the present case concerns offences alleged to have been
committed under the PC Act. Public interest and the reputation of the
B
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
C 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
D bogus or forged in nature. In both scenarios, the Court has not had an
opportunity to consider the allegedly fabricated evidence, as trial has not
yet commenced in respect of the offence. Hence it would not be possible
for the Court to independently ascertain the need for lodging a complaint
under Section 195(1)(b)(i) read with Section 340, CrPC when the evidence
alleged to have been falsified is not even present on its records. Rather,
E it is the investigating agency which is best placed to verify and prove
whether such falsification has taken place, through what means and for
what purpose.
17.3 In case the bar under Section 195(1)(b)(i) is applied to
offences committed during the course of investigation, the Court may
F think it fit to wait till the completion of trial to evaluate whether a complaint
should be made or not. Subsequently, the Court may be of the opinion
that in the larger scheme of things the alleged fabrication of evidence
during investigation has not had any material impact on the trial, and
decline to initiate prosecution for the same. The investigation agency
G cannot be compelled to take a chance and wait for the trial court to form
its opinion in each and every case. This may give the offender under
Section 193, IPC sufficient time to fabricate more falsehoods to hide the
original crime. Further, irrespective of the potential impact that such
false evidence may have on the opinion formed by the trial court, the
investigating agency has a separate right to proceed against the accused
H for attempting to obstruct fair and transparent probe into a criminal
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1053
[MOHAN M. SHANTANAGOUDAR, J.]
offence. Thus, we are of the view that it would be impracticable to insist A
upon lodging of written complaint by the Court under Section 195(1)(b)(i),
CrPC in such a situation.
18. It must be clarified that the aforementioned opinion expressed
by us is limited to factual situations such as the present case wherein the
fabricated evidence has been detected prior to commencement of the B
trial, or without such trial having been initiated in the first place. The
same may not apply for example, where the investigation agency on the
basis of false evidence given by a third party happens to wrongfully
implicate a person, other than the real perpetrator, for a particular offence.
Subsequently, the Court during the course of trial proceedings may take
judicial notice of such defect in the investigation process and make a C
complaint under Section 195(1)(b)(i), CrPC. Since by this stage, the
evidence has been produced before the Court, and contains potential for
directly impacting the formation of the Court’s opinion on the innocence
or guilt of the accused person, invoking the bar under Section 195(1)(b)(i)
may not give rise to much difficulty. However, at this juncture, we decline D
to make any conclusive finding on this aspect, as the facts of the present
appeal do not require us to consider the same. It is left open to future
Benches of this Court to settle this issue if it so arises before them.
19. In this regard, we also find it necessary to distinguish the
three-Judge Bench decision of this Court in Arvindervir Singh v. State E
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 F
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 G
& Haryana High Court Bar Association v. State of Punjab and
Others, (1996) 4 SCC 742)]. The CBI then filed a chargesheet before
the designated trial court in that case under Sections 193 and 211, IPC.
This Court in Arvindervir Singh clarified that challan was to be
H
1054 SUPREME COURT REPORTS [2021] 2 S.C.R.
A filed directly by the CBI only in respect of the offence of abduction and
murder alleged to have been committed by the appellant-accused. So
far as the offence punishable under Sections 193 and 211, IPC was
concerned it was for the designated trial court to make a written complaint
to a Magistrate having jurisdiction. However, the three-Judge Bench did
not discuss the scope and ambit of “in relation to” under Section
B
195(1)(b)(i), CrPC. Moreover, since this decision was rendered prior to
the Constitution Bench decision in Iqbal Singh Marwah (supra), the
three-Judge Bench did not have the benefit of referring to the
observations made in that case. Hence the decision in Arvindervir Singh
will not have any application to the case at hand as it involved a completely
C different set of factual and legal issues.
III. Whether “stage of a judicial proceeding” under
Explanation 2 to Section 193, IPC is synonymous with “proceeding
in any court” under Section 195(1)(b)(i), CrPC?
20. The last point that remains to be considered is the effect of
D
Explanation 2 to Section 193, IPC which deems an investigation
preliminary to a proceeding before a Court of Justice to be a “stage of
a judicial proceeding” for the purposes of the Section. Such deeming
provision applies even though that investigation may not take place before
a Court of Justice. This gives rise to the question of whether an offence
E committed during the investigation, which is a “stage of a judicial
proceeding” under Explanation 2, Section 193, IPC, would be an offence
committed “in relation to any proceeding in any Court” under Section
195(1)(b)(i), CrPC.
20.1 The purpose of Explanation 2 to Section 193, IPC is evidently
F to ensure that a person who fabricates false evidence before an
investigating or inquiring authority prior to the trial of the case does not
escape penalty. This encompasses all nature of proceedings, whether
civil or criminal. However, whether the commission of such offence
would require the complaint of a Court under Section 195(1)(b)(i) would
depend upon the authority before whom such false evidence is given.
G
For example, if a person gives false evidence in an inquiry before the
Magistrate under Section 200, CrPC, that would undoubtedly be an
offence committed before a Court under Section 195(1)(b)(i), CrPC.
However, this would not be the case where false evidence is led before
an investigating officer prior to the Court having taken cognizance of the
H offence or the case being committed for trial.
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1055
[MOHAN M. SHANTANAGOUDAR, J.]
20.2 The object and purpose of Section 195(1)(b), CrPC must be A
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
B
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 C
a judicial proceeding insofar as it may culminate in issue of process and
trial against the accused, it would not be a proceeding in relation to a
certain Court under Section 195(1)(b) (i), CrPC before the Court has
even taken judicial notice of such investigation. The difference between
a “stage” of a judicial proceeding and the judicial proceeding itself must
D
be emphasized in this regard.
21. We find it necessary to distinguish certain decisions of this
Court which have adjudicated upon the correlation between the words
“judicial proceeding” and “proceeding in any court” for further clarifying
our position on this point. In Lalji Haridas v. State of Maharashtra,
(1964) 6 SCR 700, a Constitution Bench of this Court considered whether E
proceedings before an Income Tax Officer under the Indian Income
Tax Act, 1922 would be proceedings in any court under Section 195(1)(b)
of the 1898 Code, which was the corresponding section in that Code to
Section 195(1)(b)(i), CrPC. Section 37(4) of the 1922 Act provided that
proceedings before the Income Tax authority shall be deemed to be F
“judicial proceedings” (and not merely a stage of such proceedings)
under Section 193, IPC. It was in this context that the majority of the
Constitution Bench (K.C. Dasgupta J., dissenting) held that the
expressions “judicial proceeding” under the 1922 Act and “proceeding
in any court” under Section 195(1) (b), 1898 Code are synonymous.
Therefore, a private complaint would not be maintainable in respect of a G
false statement given on oath before the Income Tax Officer.
21.1 In Babita Lila and Another v. Union of India, (2016) 9
SCC 647, a Division Bench of this Court similarly considered the
jurisdiction of the Deputy Director of Income Tax to make a complaint
under Section 195(1)(b), CrPC in respect of false statements given on H
1056 SUPREME COURT REPORTS [2021] 2 S.C.R.
A oath during a search operation conducted under the Income Tax Act,
1961. The discussion in this case was primarily concerned with whether
the Deputy Director would be the competent appellate authority authorized
to make a complaint under Section 195(4), CrPC. However, the Division
Bench, referring to Lalji Haridas, made an ancillary observation that
such search operation is deemed to be a “judicial proceeding” under
B
Section 193, CrPC, and that the relevant Income Tax authority would be
deemed to be a civil court for the purpose of Section 195, CrPC. This is
as per the express provision made to the effect under Section 196 of the
1961 Act.
21.2 In Chandrapal Singh and Others v. Maharaj Singh and
C 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
D
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.
E 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
F be judicial proceedings. Therefore, if any false evidence was given during
the course of such proceedings, only the Rent Control Officer was
authorized to make complaint of the same under Section 195(1)(b)(i),
CrPC. Even otherwise, on the facts of the case, the three-Judge Bench
found that abuse of criminal process had taken place and observed that
“chagrined and frustrated litigants should not be permitted to give
G vent to their frustration by cheaply invoking the jurisdiction of the
criminal court” (Chandrapal Singh, (supra), paragraph 14).
21.3 It can be seen from the above discussion that this Court has,
in some instances, opined that where the law deems proceedings before
a certain authority to be “judicial proceedings”, the same would be
H considered as “proceedings in any court” under Section 195(1)(b)(i),
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1057
[MOHAN M. SHANTANAGOUDAR, J.]
CrPC. Therefore, if the offence under Section 193, IPC is committed A
before such an authority, the written complaint of that authority is
mandatorily required for trial of the offence. However, the facts of the
decisions in Lalji Haridas (supra), Babita Lila (supra) and Chandrapal
Singh (supra), are clearly distinguishable from the present appeal as
they all involve 1) False statements made on oath or in affidavits, 2) in a
B
judicial proceeding and 3) before an authority which is expressly deemed
under law to be a “court”. None of the aforequoted cases were concerned
with fabrication of evidence before an investigating authority under a
penal statute.
22. In the present case, pursuant to recovering the seized currency
from the Appellant’s house on 24.01.2001, the Respondent initiated C
investigation under Section 13(2) read with Section 13(1)(e), PC Act
against him. Accused Nos. 2 and 3, at the behest of the Appellant, wrote
letter dated 4.02.2002 to the Superintendent of Police, CBI stating that
the seized currency was held by the Appellant as part of an escrow
arrangement amongst the parties. Hence, they sought that the money D
should be paid back to Accused No. 2. They additionally produced a
false sale deed dated 24.01.2001 and certain books of account in support
of their claim. There was no involvement of the Trial Court at this stage
in as much as the letter dated 4.02.2002 and the sale deed were obviously
intended to convince the investigation agency that the Appellant had not
accumulated disproportionate financial assets. Had the Respondent E
accepted the veracity of the contents of this letter, they would not only
have dropped the investigation against Appellant/Accused No. 1 but also
wrongfully returned the seized currency under the mistaken impression
that it was the property of Accused No. 2. The Accused No. 2 would
have then facilitated the return of the Appellant’s ill-gotten gains back to F
his custody. The authorities would be none the wiser and the loss of Rs.
80 lakhs from the exchequer would have flown under the radar.
22.1 Therefore in the present case, it is not the Trial Court but the
Respondent authority/agency which has been directly impacted due to
fabrication of evidence by the Appellants/accused. The Appellants’
intention was not to mislead the Trial Court, at least not at the first instance. G
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 H
1058 SUPREME COURT REPORTS [2021] 2 S.C.R.
A under Sections 120B read with 193, IPC was committed by the Appellants
“in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC.
22.2 Section 2(i), CrPC defines “judicial proceeding” as including
any proceeding in the course of which evidence is or may be legally
taken by oath. The investigation under the PC Act was admittedly a
B stage of a judicial proceeding by virtue of Explanation 2 to Section 193,
IPC. However, neither was the fabricated evidence in the present case
given on oath before the investigating officer, nor is the investigating
authority under the PC Act deemed to be a “court” for the purpose of
Section 195(1)(b), CrPC. Hence, the decisions in Lalji Haridas (supra)
and Chandrapal Singh (supra) will have no applicability to the present
C case. Thus, it can be concluded that the investigation conducted by the
Respondent under the PC Act cannot be equated with a proceeding in a
court of law under Section 195(1) (b)(i), CrPC, though it is deemed to be
a stage of a judicial proceeding under Section 193, IPC.
22.3 Had this been a case wherein the Respondent had not
D developed any suspicion against Accused Nos. 2 and 3, and the Trial
Court had subsequently discovered the subterfuge caused by them, we
may have taken a different view. As we have noted in paragraph 18
(supra), where the fabrication of evidence has escaped the scrutiny of
the investigating agency, and the case is subsequently brought to trial,
such evidence would have direct bearing on the trial court’s opinion and
E hence the bar under Section 195(1)(b)(i), CrPC may be applicable.
However, in the present case, the investigating agency has been sagacious
enough to detect the commission of offence under Section 193, IPC at
the preliminary stage. Therefore, as stated by us in paragraph 17.3
(supra), it would be unjust and impracticable to insist upon the requirement
F of an independent inquiry and written complaint by the Trial Court in
such a scenario.
23. Thus, the questions of law stated in paragraph 6 (supra) stand
answered against the Appellants/accused. Even on merits, 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
G
that the Appellant/Accused No. 1 had not raised the defence of holding
the money in escrow for Accused Nos. 2 and 3 at the time of search
conducted at his house on 24.01.2001. The supposed agreement of sale
was also not produced. This defence was raised by Accused Nos. 2 and
3 at a highly belated stage on 4.02.2002, almost a year after the recovery
H of the seized currency, though the Appellant had corresponded with
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE 1059
[MOHAN M. SHANTANAGOUDAR, J.]
Accused No. 2 in May-June, 2001. It is improbable in the ordinary course A
of conduct that a person would wait so long to claim an amount of
approximately Rs. 80 lakhs which was required for completion of sale
transaction. The stamp paper on which the sale deed was made was
also proved to be illegal. Hence it is apparent that the Appellants/accused
entered into an elaborate conspiracy and attempted to create a false
B
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. C
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 D
investigating agency for offence punishable under Section 193, IPC,
which is committed during the stage of investigation. This is provided
that the investigating agency has lodged complaint or registered the case
under Section 193, IPC prior to commencement of proceedings and
production of such evidence before the trial court. In such circumstance,
the same would not be considered an offence committed in, or in relation E
to, any proceeding in any Court for the purpose of Section 195(1)(b)(i),
CrPC.
24.1 The appeals are accordingly dismissed both on law and on
merits. The sentence awarded by the High Court shall be set- off against
the period of imprisonment, if any, already undergone by the Appellants. F
The Appellants are directed to surrender within two weeks for serving
out the rest of their sentence, if they are not already in custody. The
Registry is further directed to expeditiously release the amount of fine, if
any, deposited before this Court. If any arrears of fine are remaining,
the Appellants shall pay the same within a period of not more than four G
weeks from the date of this order.
Ankit Gyan Appeals dismissed.
H
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