Tuesday, 5 February 2019

Whether private complaint U/S 193 of IPC(false evidence in judicial proceeding) is maintainable?

 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

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.
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. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 211 OF 2019

SH. NARENDRA KUMAR SRIVASTAVA Vs THE STATE OF BIHAR 

S.ABDUL NAZEER, J.
Dated:February 04, 2019.


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,
Motihari, taking cognizance of an offence
punishable under Section 193 of the Indian Penal Code, 1860 (for
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 1st 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 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 extend
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 de6
scription for a term which may extend to
three years, and shall also be liable to fine.
Explanation 1.—A trial before a Courtmartial
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 proceeding,
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 proceeding,
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 proceeding,
A has given false evidence."
11. Section 195 of the Cr.P.C. expressly states as follows:
7
“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 subclause
(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 subsection
(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 subsection
(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—
9
(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.
11
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 subsection
(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

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

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

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

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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