Sh. Narendra Kumar Srivastava vs The State Of Bihar

SH. NARENDRA KUMAR SRIVASTAVA … APPELLANT

VERSUS

THE STATE OF BIHAR & ORS. ... RESPONDENTS

JUDGMENT

S.ABDUL NAZEER, J.

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

2. This appeal is directed against the judgment and order dated

30.03.2017 in Criminal Revision No. 111 of 2017, whereby the

High Court of Judicature at Patna has allowed the revision petition

filed by the respondent Nos. 2 to 4 and set aside the order dated

22.12.2016 passed by the learned Assistant Chief Judicial

Magistrate­VII, Signature Not Verified Motihari, taking cognizance of an offence Digitally signed by SANJAY KUMAR Date: 2019.02.05

punishable under Section 193 of the Indian Penal Code, 1860 (for 13:25:23 IST Reason: 1 short, ‘the IPC’) on the basis of a private complaint filed by the

appellant.

3. Respondent Nos. 2 to 4 are the officials of Doordarshan and

All India Radio. The appellant had joined the Doordarshan Kendra,

Motihari, as an Engineering Assistant in the pay scale of Rs.1400/­

to Rs.2600/­. It was contended that the pay scale of Engineering

Assistants was revised from Rs.2000/­ to Rs.3000/­ with effect

from 01.01.1986, by the Ministry of Information and Broadcasting

by its decision dated 15.05.1995. The pay scale of Senior

Engineering Assistant was revised from Rs.2000/­ to Rs.3275/­

with effect from 01.01.1986. It is his case that replacement pay

scale of all the categories, with effect from 01.01.1996, was fixed at

Rs.6500/­ to Rs.10,500/­. The Employees Association of the

concerned cadre, upon coming into force of Assured Career

Progression (ACP) scheme, had represented for grant of 1 st ACP in

the pay scale of Rs. 8000/­ to 13,500/­ which was not being

allowed, which led to the filing of an application before Central

Administrative Tribunal, Patna Bench (for short 'the CAT'). This

2 gave rise to O.A. No. 514 of 2002. The said O.A. was allowed by

the CAT, by an order dated 07.09.2009.

4. The Union of India challenged the said order by filing a writ

petition before the High Court. The High Court allowed the writ

petition with an observation that no generalized direction could be

given for the grant of ACP and the ACP has to be granted on

individual basis. The appellant, thereafter, represented before the

competent authority for grant of 1st ACP. On refusal, he filed O.A.

No.173 of 2009 before the CAT, which was dismissed on

13.02.2013. The appellant, thereafter, approached the High Court

by filing a writ petition CWJC No. 2797 of 2014, which was

disposed of by an order dated 29.06.2014, with a direction to the

respondents therein to pass appropriate order on the

representation filed by the appellant. Alleging non­compliance of

the said order, the appellant filed a contempt petition before the

High Court, which gave rise to MJC No.2912 of 2015.

5. In the petition alleging contempt, it was contended that in the

contempt case, the respondents filed a show­cause showing

compliance of the order dated 29.06.2014, and accordingly, the 3 contempt case was dropped with liberty to the appellant to

challenge the order passed in compliance of the court’s directive

before an appropriate forum. Instead of challenging the said order,

the appellant filed a private complaint against respondent Nos. 2 to

4 before the Assistant Chief Judicial Magistrate­VII, Motihari

alleging commission of offence punishable under Section 193 read

with Section 34 of the IPC alleging that because of the false and

wrong statement made by the respondents in their show­cause

affidavit, the High Court dropped the contempt case. The

Magistrate by an order dated 22.12.2016 took cognizance of the

same and summoned respondent Nos. 2 to 4.

6. The respondent Nos. 2 to 4 challenged the said order of the

Magistrate before the High Court. As noticed above, the High Court

has allowed the criminal revision petition by its order dated

30.03.2017.

7. Learned counsel for the appellant submits that in the

contempt petition filed by the appellant, the respondents had filed

false affidavits prepared/forged outside the court. On the basis of

the false affidavits, the High Court dropped the contempt case. 4 Therefore, the appellant filed a complaint before the Magistrate

under Section 193 of the IPC against the respondent Nos. 2 to 4. It

is argued that it was not mandatory to obtain prior sanction for

filing a private complaint under Section 193 of the IPC and that the

complaint filed by the appellant was maintainable. In this

connection he has relied on a decision of this Court in Sachida

Nand Singh and Anr. v. State of Bihar and Anr., (1998) 2 SCC

493.

8. On the other hand, learned counsel appearing for the

respondents, submits that the punishment for offence giving false

evidence in judicial proceedings is stipulated in Section 193 of the

IPC and the law governing taking of the cognizance of such an

offence is contained in Section 195 of the Cr.P.C. Section 195 of

the Cr.P.C. puts a clear bar on taking of cognizance by a Court, of

an offence punishable under Section 193 of the IPC, unless it is on

a complaint in writing of the Court or such officer of the Court as

that Court may authorize in writing in this behalf, in relation to a

judicial proceeding of which Court, the offence is alleged to have

been committed. Since no such complaint has been made, the

5 High Court was justified in quashing the order of the Magistrate.

In this connection, reliance is placed on the judgment of this Court

in M.S. Ahlawat v. State of Haryana and another, (2000) 1 SCC

278.

9. Having regard to the contentions urged, the question for

consideration is whether the Magistrate was justified in taking

cognizance of an offence punishable under Section 193 of the IPC

on the basis of a private complaint?

10. Before proceeding further, it is important to peruse the

relevant sections of the IPC and Cr.P.C. Section 193 of IPC reads

as follows:

"193. Punishment for false evidence.— Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabri­ cates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of ei­ ther description for a term which may ex­ tend to seven years, and shall also be liable to fine,

and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either de­

6 scription for a term which may extend to three years, and shall also be liable to fine.

Explanation 1.—A trial before a Court­mar­ tial is a judicial proceeding.

Explanation 2.—An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of judicial pro­ ceeding, though that investigation may not take place before a Court of Justice.

Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceed­ ing, A has given false evidence.

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

Illustration A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceed­ ing, A has given false evidence."

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

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“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. —(1) No Court shall take cognizance —

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

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any 8 offence specified in sub­clause (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]. (2) Where a complaint has been made by a public servant under clause (a) of sub­ section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

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

(3) In clause (b) of sub­section (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.

(4) For the purposes of clause (b) of sub­ section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that—

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

(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” (emphasis supplied)

12. It is clear from sub­section (1)(b) of Section 195 of the Cr.P.C.

that the section deals with two separate set of offences:

(i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; [Section 195(1)(b)(i)]

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of IPC, when such offence is alleged to have

10 been committed in respect of a document produced or given in evidence in a proceeding in any Court.

[Section 195(1)(b)(ii)].

13. On the reading of these sections, it can be easily seen that the

offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are

clearly distinct. The first category of offences refers to offences of

false evidence and offences against public justice, whereas, the

second category of offences relates to offences in respect of a

document produced or given in evidence in a proceeding in any

court.

14. Section 195 of the Cr.P.C. lays down a rule to be followed by

the court which is to take cognizance of an offence specified therein

but contains no direction for the guidance of the court which

desires to initiate prosecution in respect of an offence alleged to

have been committed in or in relation to a proceeding in the latter

court. For that purpose, one must turn to Section 340 which

requires the court desiring to put the law in motion to prefer a

complaint either suo motu or an application made to it in that

behalf.

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

“340. Procedure in cases mentioned in Section 195.—(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub­section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non­bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub­ section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub­section (1) in respect of that offence nor rejected an application for the making of such complaint, be

12 exercised by the Court to which such former Court is subordinate within the meaning of sub­section (4) of Section 195. (3) A complaint made under this section shall be signed,—

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court[or by such officer of the Court as the Court may authorise in writing in this behalf].

(4) In this section, “Court” has the same meaning as in Section 195.”

16. Section 340 of Cr.P.C. makes it clear that a prosecution under

this Section can be initiated only by the sanction of the court

under whose proceedings an offence referred to in Section 195(1)(b)

has allegedly been committed. The object of this Section is to

ascertain whether any offence affecting administration of justice

has been committed in relation to any document produced or given

in evidence in court during the time when the document or

evidence was in custodia legis and whether it is also expedient in

the interest of justice to take such action. The court shall not only

13 consider prima facie case but also see whether it is in or against

public interest to allow a criminal proceeding to be instituted.

17. This Court in Chajoo Ram v. Radhey Shyam, (1971) 1 SCC

774 at page 779, held that the prosecution under Section 195

could be initiated only by the sanction of the court and only if the

same appears to be deliberate and conscious. It emphatically held

as under:

“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge…..."

14 18. In Santokh Singh v. Izhar Hussain and Anr., (1973) 2 SCC

406, this Court has held that every incorrect or false statement

does not make it incumbent on the court to order prosecution. The

Court has to exercise judicial discretion in the light of all the

relevant circumstances when it determines the question of

expediency. The court orders prosecution in the larger interest of

the administration of justice and not to gratify the feelings of

personal revenge or vindictiveness or to serve the ends of a private

party. Too frequent prosecutions for such offences tend to defeat its

very object. It is only in glaring cases of deliberate falsehood where

conviction is highly likely that the court should direct prosecution.

19. This Court in M.S. Ahlawat (supra) has clearly held that

private complaints are absolutely barred in relation to an offence

said to have been committed under Section 193 IPC and that the

procedure prescribed under Section 195 of the Cr.P.C. are

mandatory. It was held that:

"5. Chapter XI IPC deals with “false evidence and offences against public justice” and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 15 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.

6. Section 340 CrPC prescribes the procedure as to how a complaint may be preferred under Section 195 CrPC. While under Section 195 CrPC it is open to the court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 CrPC prescribes the procedure as to how that complaint may be preferred. Provisions under Section 195 CrPC are mandatory and no court can take cognizance of offences referred to therein (sic). It is in respect of such offences the court has jurisdiction to proceed under Section 340 CrPC and a complaint 16 outside the provisions of Section 340 CrPC cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction."

(emphasis supplied)

20. As already mentioned, clauses under Section 195(1)(b) of the

Cr.P.C. i.e. sub­section 195(1)(b)(i) and sub­section 195(1)(b)(ii)

cater to separate offences. Though Section 340 of the Cr.P.C. is a

generic section for offences committed under Section 195(1)(b), the

same has different and exclusive application to clauses (i) and (ii) of

Section 195(1)(b) of the Cr.P.C.

21. In Sachida Nand Singh (supra) relied on by the learned

counsel for the appellant, this Court was considering the question

as to whether the bar contained in Section 195(1)(b)(ii) of the

Cr.P.C. is applicable to a case where forgery of the document was

committed before the document was produced in a court. It was

held:

"6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or 17 any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference?

xxx xxx xxx

23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)

(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal.”

22. In Sachida Nand Singh (supra), this Court had dealt with

Section 195(1)(b)(ii) of the Cr.P.C unlike the present case which is

covered by the preceding clause of the Section. The category of

offences which fall under Section 195(1)(b)(i) of the Cr.P.C. refer to

the offence of giving false evidence and offences against public

18 justice which is distinctly different from those offences under

Section 195(1)(b)(ii) of Cr.P.C, where a dispute could arise whether

the offence of forging a document was committed outside the court

or when it was in the custody of the court. Hence, this decision

has no application to the facts of the present case.

23. The case in hand squarely falls within the category of cases

falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is

punishable under Section 193 of the IPC. Therefore, the

Magistrate has erred in taking cognizance of the offence on the

basis of a private complaint. The High Court, in our view, has

rightly set aside the order of the Magistrate. However, having

regard to the facts and circumstances of the case, we deem it

proper to set aside the costs imposed by the High Court.

24. The appeal is disposed of accordingly.

…………………………………J. (A.K. SIKRI)

…………………………………J. (S. ABDUL NAZEER) New Delhi;

February 04, 2019.

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