Thursday, January 23, 2014

Punish cops who file false charges: SC


Punish cops who file false charges: SC


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPEAL NO.169 OF 2014
     (Arising out of Special Leave Petition (Criminal) No.1221 of 2012)

Perumal                                            …Appellant
Janaki                                             …Respondent

                               J U D G M E N T

Chelameswar, J.

1.    Leave granted.

2.    Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the  High  Court
of  Madras,  the  unsuccessful  petitioner  therein  preferred  the  instant

3.      A petition in C.M.P.  No.4561  of  2010  (private  complaint)  under
section 200 of the Code of Criminal Procedure, 1973 (hereinafter  for  short
referred to as “the Cr.P.C.”) filed by  the  appellant  herein  against  the
respondent came to be dismissed by the Judicial Magistrate No.2 at  Pollachi
by  his  judgment  dated  31st  August  2010.   Challenging  the  same,  the
abovementioned Crl. R.C. was filed.

4.    The factual background of the case is as follows:

5.    The respondent was working as a Sub-Inspector in an  All-Women  Police
Station, Pollachi at the relevant point of time.   On  18th  May  2008,  one
Nagal reported to the respondent that the appellant herein had cheated  her.
 The respondent registered Crime No.18/08 under sections 417 and  506(i)  of
the Indian Penal Code (hereinafter for short  referred  to  as  “the  IPC”).
Eventually, the respondent filed a charge-sheet,  the  relevant  portion  of
which reads as follows:
      “On 26.12.07, that the accused called upon  the  de-facto  complainant
      for an outing and while  going  in  the  night  at  around  10.00  via
      Vadugapalayam  Ittori  route  the   accused   enticed   the   de-facto
      complainant of marrying her and had sexual interaction  several  times
      in the nearby jungle and on account of which  the  complainant  became
      pregnant and when she asked the accused to marry him he threatened the
      complainant of killing her if she disclosed the above fact to anybody.

      Hence the accused committed an offence punishable u/s. 417, 506 (i) of
                                                         [emphasis supplied]

6.    The appellant was tried  for  the  offences  mentioned  above  by  the
learned  Judicial  Magistrate  No.1,   Pollachi.    The   learned   Judicial
Magistrate by his judgment dated 15th March 2010 acquitted the appellant  of
both the charges.

7.    It appears that the said judgment has become final.

8.    In the light  of  the  acquittal,  the  appellant  filed  a  complaint
(C.M.P. No.4561 of 2010) under section 190 of the Cr.P.C.  on  the  file  of
the Judicial Magistrate No.2 at Pollachi  praying  that  the  respondent  be
tried for an offence under section 193 of the IPC.  The said complaint  came
to be dismissed by an order dated 31st August 2010 on  the  ground  that  in
view of sections 195 and 340 of the Cr.P.C. the complaint of  the  appellant
herein is not maintainable.

9.    Aggrieved by the said dismissal, the appellant  herein  unsuccessfully
carried the matter to the High Court.  Hence the present appeal.

10.   The case of the appellant herein  in  his  complaint  is  that  though
Nagal alleged an offence of cheating against the appellant which led to  the
pregnancy of Nagal, such an offence was not proved against  him.   Upon  the
registration of Crime No.18/08, Nagal was subjected to medical  examination.
She was  not  found  to  be  pregnant.   Dr.  Geetha,  who  examined  Nagal,
categorically opined that Nagal was not found to be pregnant on the date  of
examination which took place six days after the  registration  of  the  FIR.
In spite of the definite medical opinion that Nagal was  not  pregnant,  the
respondent chose to file  a  charge-sheet  with  an  allegation  that  Nagal
became pregnant.  Therefore, according to the  appellant,  the  charge-sheet
was filed with a deliberate false statement by the respondent  herein.   The
appellant, therefore, prayed in his complaint as follows;
           “It is, therefore, prayed that this Hon’ble Court may be pleased
           to take this complaint on file, try the accused U/s. 193 IPC for
           deliberately giving false evidence in the Court as  against  the
           complainant, and punish the accused and  pass  such  further  or
           other orders as this Hon’ble court deems fit and proper.”

11.   The learned Magistrate dismissed the  complaint  on  the  ground  that
section 195 of the Cr.P.C. bars criminal courts to  take  cognizance  of  an
offence under section 193 of the IPC except on the complaint in  writing  of
that Court or an officer of that Court in relation to any proceeding in  the
Court where the offence under section 193 is said  to  have  been  committed
and a private complaint such as the one on hand is not maintainable.

12.   The High Court declined to interfere with the matter  in  exercise  of
its revisional jurisdiction.  The  operative  portion  of  the  order  under
challenge reads as follows:
          “3.     … This court is in agreement with the  conclusion  of  the
          court below in dismissing the complaint.  The  complaint  provided
          very little to take action upon, particularly,  where  this  court
          finds that the respondent had not in any manner tampered with  the
          medical record  so  as  to  mulct  the  petitioner  with  criminal
          liability.  The wording in the final report informing  of  the  de
          facto complainant having  been  pregnant  can  in  the  facts  and
          circumstances of the case, be seen only as a mistake.

          4.      In the result, the criminal revision stands dismissed.”

13.   We regret to place on record that at every stage of  this  matter  the
inquiry was misdirected.

14.   The facts relevant for the issue on hand are that:-
      (1)   The appellant was prosecuted for the offences under sections 417
      and 506 (i) IPC.  (The factual allegations forming the basis of such a
      prosecution are already noted earlier).

      (2)   The respondent filed a charge-sheet with an assertion  that  the
      appellant was responsible for pregnancy of Nagal.

      (3)   Even before the filing of the charge-sheet, a  definite  medical
      opinion was available to the respondent (secured during the course  of
      the investigation of the offence alleged against the appellant) to the
      effect that Nagal was not pregnant.

      (4)   Still the respondent chose to assert in  the  charge-sheet  that
      Nagal was pregnant.

      (5) The prosecution against the appellant ended in acquittal.

15.   The abovementioned indisputable facts, in  our  opinion,  prima  facie
may not constitute an offence under section 193 IPC but  may  constitute  an
offence under section 211 IPC.  We say prima facie only for the reason  this
aspect has not been examined at any stage in the case nor any submission  is
made before us on either side but we cannot help taking notice of the  basic
facts and the legal position.

16.   The offence under section  193[1]  IPC  is  an  act  of  giving  false
evidence or fabricating false evidence in a judicial  proceeding.   The  act
of giving false evidence is defined under section 191 IPC as follows:
      “191. Giving false evidence.— Whoever, being legally bound by an  oath
      or by an express provision of law to state the truth, or  being  bound
      by law to make a declaration upon any  subject,  makes  any  statement
      which is false, and which he either knows or believes to be  false  or
      does not believe to be true, is said to give false evidence.

            Explanation  1.—A  statement  is  within  the  meaning  of  this
      section, whether it is made verbally or otherwise.

           Explanation 2.—A false statement as to the belief of the  person
      attesting is within the meaning of this section, and a person  may  be
      guilty of giving false evidence by stating that he  believes  a  thing
      which he does not believe, as well as by stating that he knows a thing
      which he does not know.”

It can be seen from the definition that  to  constitute  an  act  of  giving
false evidence, a person must make a statement which is either false to  the
knowledge or belief of the maker or which the maker does not believe  to  be
true.  Further, it requires that such a statement is made by  a  person  (1)
who is legally bound by an oath; (2) by  an  express  provision  of  law  to
state the truth; or (3) being bound by law to make a  declaration  upon  any

17.   A police officer filing a charge-sheet does not make any statement  on
oath nor is bound by any express provision of law to state the truth  though
in our opinion being a public servant is  obliged  to  act  in  good  faith.
Whether the statement made by the police officer in a  charge-sheet  amounts
to a declaration upon any subject within the meaning of  the  clause  “being
bound by law to  make  a  declaration  upon  any  subject”  occurring  under
section 191 of the IPC is a question which requires further examination.

18.   On the other hand, section 211 of the IPC deals  with  an  offence  of
instituting or causing to be instituted any criminal proceeding  or  falsely
charging any person of having committed an offence even  when  there  is  no
just or lawful ground for such proceeding to the  knowledge  of  the  person
instituting or causing the institution of the criminal proceedings.

19.   Irrespective  of  the  fact  whether  the  offence  disclosed  by  the
complaint of the  appellant  herein  is  an  offence  falling  either  under
section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares  that  no
Court shall take cognizance of either of  the  abovementioned  two  offences
except in the manner specified under section 195 of the Cr.P.C.:
      “195. Prosecution for contempt of lawful authority of public servants,
      for offences against public  justice  and  for  offences  relating  to
      documents given in evidence.—(1) No Court shall take cognizance—

                          x     x     x    x     x

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

      except on the complaint in writing of that Court or by such officer of
      the Court as that Court may authorise in writing in this behalf, or of
      some other Court to which that court is subordinate.”

20.   In the light of the language of section 195 Cr.P.C.  we  do  not  find
fault with the conclusion  of  the  learned  Magistrate  in  dismissing  the
complaint of the appellant herein for the reason that the complaint  is  not
filed by the person contemplated  under  section  195  Cr.P.C.   It  may  be
mentioned here that as a matter of fact the Court before which  the  instant
complaint was lodged is not  the  same  Court  before  which  the  appellant
herein was prosecuted by the respondent.

21.   Under section 340(1) of the Cr.P.C., it is  stipulated  that  whenever
it appears that any one of the offences mentioned  in  clause  (b)  of  sub-
section (1) of section 195 appears to have been committed in or in  relation
to a proceeding before a Court, that Court either on an application made  to
it or otherwise make  a  complaint  thereof  in  writing  to  the  competent
Magistrate after following the procedure mentioned under section 340 of  the

22.   Admittedly, the appellant herein did not make an  application  to  the
judicial magistrate No.1, Pollachi under section 340 to ‘make  a  complaint’
against the respondent herein nor  the  said  magistrate  suo  moto  made  a
complaint.  Therefore, the learned judicial magistrate No.2 before whom  the
private complaint is made by the appellant had no option but to dismiss  the

23.   But the High Court, in our view, is not justified in confining  itself
to the examination of  the  correctness  of  the  order  of  the  magistrate
dismissing the said private complaint.   Both  Section  195(1)  and  Section
340(2) Cr.P.C. authorise the exercise of the power conferred  under  Section
195(1) by any other court to  which  the  court  in  respect  of  which  the
offence is committed is subordinate to. (hereinafter  referred  to  for  the
sake of convenience as ‘the original court’)

24.   It can be seen from the language of Section 195(4),  Cr.P.C.  that  it
creates a legal fiction whereby it is declared that the  original  court  is
subordinate  to  that  court  to  which  appeals  ordinarily  lie  from  the
judgments or orders of the original court. (hereinafter referred to as  ‘the
appellate court’)  In our view, such a fiction must  be  understood  in  the
context of Article 227[3] of the Constitution of  India  and  Section  10(1)
and 15(1) of Cr.P.C[4]. Article 227 confers the power of superintendence  on
a  High  Court  over  all  courts  and  tribunals  functioning  within   the
territories in relation  to  which  a  High  Court  exercises  jurisdiction.
Section 10(1) and 15(1) of  Cr.P.C.  declare  that  the  Assistant  Sessions
Judges and Chief Judicial Magistrates are subordinate to the  Session  Judge
and other Judicial Magistrates to  be  subordinate  to  the  Chief  Judicial
Magistrate  subject  to  the  control  of  the  Session  Judge.  It  may  be
remembered that Section 195(4) deals with  the  authority  of  the  superior
courts in the context of taking cognizance of various offences mentioned  in
Section 195(1). Such offences are relatable to civil, criminal  and  revenue
courts etc.[5] Each one of the  streams  of  these  courts  may  have  their
administrative hierarchy depending upon under the law by which  such  courts
are brought into existence.  It is also well known that certain courts  have
appellate   jurisdiction   while   certain   courts   only   have   original
jurisdiction.  Appellate  jurisdiction  is  the  creature  of  statute   and
depending upon the scheme of a  particular  statute,  the  forum  of  appeal
varies. Generally, the appellate for a are created on the  basis  of  either
subject matter of dispute or economic implications or nature of crime etc.

25.   Therefore, all that sub-section  (4)  of  Section  195  says  is  that
irrespective of the fact  whether  a  particular  court  is  subordinate  to
another court in the hierarchy of judicial administration, for  the  purpose
of exercise of powers under Section 195(1), every appellate court  competent
to entertain the appeals either from  decrees  or  sentence  passed  by  the
original court is treated to be a court concurrently competent  to  exercise
the jurisdiction under Section 195(1).   High  Courts  being  constitutional
courts invested with the powers of superintendence over  all  courts  within
the territory over which the High Court exercises its jurisdiction,  in  our
view, is certainly  a  Court  which  can  exercise  the  jurisdiction  under
Section 195(1).  In the absence of any  specific  constitutional  limitation
of prescription on  the  exercise  of  such  powers,  the  High  Courts  may
exercise such power either  on  an  application  made  to  it  or  suo  moto
whenever the interests of justice demand.

26.   The  High  Courts  not  only  have  the  authority  to  exercise  such
jurisdiction but also an obligation to exercise such  power  in  appropriate
cases.  Such obligation, in our opinion, flows from two factors  –  (1)  the
embargo created by Section 195 restricting the liberty of aggrieved  persons
to initiate criminal proceedings with respect to offences  prescribed  under
Section 195; (2) such offences pertain to  either  the  contempt  of  lawful
authorities of public servants or offences against public justice.

27.   A constitution Bench of this Court in Iqbal Singh  Marwah  &  Anr.  v.
Meenakshi Marwah & Anr., (2005) 4 SCC 370, while  interpreting  Section  195
Cr.P.C., although in a different  context,   held  that  any  interpretation
which leads to a situation where a victim of crime is  rendered  remediless,
has to be discarded[6]. The power of superintendence like  any  other  power
impliedly carries an obligation to exercise powers in  an  appropriate  case
to maintain the majesty of the judicial process and the purity of the  legal
system. Such an obligation becomes more profound when these  allegations  of
commission of offences pertain to public justice.

28.   In the case on hand, when the  appellant  alleges  that  he  had  been
prosecuted on the basis of a  palpably  false  statement  coupled  with  the
further  allegation  in  his  complaint  that  the  respondent  did  so  for
extraneous considerations, we are of the opinion that it is  an  appropriate
case where the High Court ought to have  exercised  the  jurisdiction  under
Section  195  Cr.P.C..   The  allegation  such  as  the  one  made  by   the
complainant against the respondent is not uncommon. As was  pointed  earlier
by this Court in a different context “there is no rule of  law  that  common
sense should be put in cold storage”[7]. Our  Constitution  is  designed  on
the theory of checks and balances. A theory which  is  the  product  of  the
belief that all power corrupts - such belief is based on experience.

29.   The appeal is, therefore, allowed.  The  matter  is  remitted  to  the
High Court for further appropriate course of action to initiate  proceedings
against the respondent on the basis of the complaint  of  the  appellant  in
accordance with law.
                                         (P. Sathasivam)
                                         (J. Chelameswar)

New Delhi;
January 20, 2014.
[1]    Section 193. Punishment  for  false  evidence.—Whoever  intentionally
gives false evidence in any stage of a judicial  proceeding,  or  fabricates
false evidence for the purpose of being used in  any  stage  of  a  judicial
proceeding, shall be punished with imprisonment of either description for  a
term which may extended to seven years, and shall also be liable to fine,

      and whoever intentionally gives or fabricates false  evidence  in  any
other case, shall be punished with imprisonment of either description for  a
term which may extended to three years, and shall also be liable to fine.

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

      Explanation 2.—An investigation  directed  by  law  preliminary  to  a
proceeding before a Court of Justice, is a stage of a  judicial  proceeding,
though that investigation may not take place before a Court of Justice.
[2]    Section 340. Procedure in cases mentioned in  section  195.—(1)  When
upon an application made to it in this behalf or otherwise, any Court is  of
opinion that it is expedient in the interests of  justice  that  an  inquiry
should be made into any offence referred to in  clause  (b)  of  sub-section
(1) of section 195, which appears to have been committed in or  in  relation
to a proceeding in that Court or, as the  case  may  be,  in  respect  of  a
document produced or given in evidence in a proceeding in that  court,  such
Court may, after such preliminary inquiry, if any, as it thinks necessary,-
      (a)   record a finding to that effect;
      (b)   make a complaint thereof in writing;
      (c)   send it to a Magi?


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