Law Web: Whether an investigating officer can file criminal prosecution against the accused if he fabricates false evidence during the investigation?

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 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 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 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, 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 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 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 for attempting to obstruct fair and

transparent probe into a criminal offence. Thus, we are of the

view that it would be impracticable to insist upon lodging of

written complaint by the Court under Section 195(1)(b)(i), CrPC

in such a situation.

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 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

to, any proceeding in any Court for the purpose of

Section 195(1)(b)(i), CrPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2021

(arising out of S.L.P. (Criminal) No. 5102 of 2020)

Bhima Razu Prasad Vs State

MOHAN M. SHANTANAGOUDAR, J.

Dated: MARCH 12, 2021

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 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 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 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 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.) No. 6720 of 2020) and Accused No. 3 Murugesan (Appellant

in the connected appeal arising out of S.L.P. (Crl.) No. 6327 of

2020) wrote letter dated 4.02.2002 to the Superintendent of

Police, CBI/ACUII

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

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. 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 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.

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 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

Respondent’s claim is that the Appellant conspired with Accused

Nos. 24

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. 24

under

Section 120B read with Section 193 of the 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, 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 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 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 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 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.

The High Court relied upon the decision of a threeJudge

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 decisions were rendered in

the context of interpreting Section 195(1)(b)(ii) of the CrPC, the

High Court held that Section 195(1)(b)(i) is analogous 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. 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 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 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, 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 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.

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.

(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 relation to, any proceeding in any Court,

(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,

(iii) of any criminal conspiracy to commit, or attempt

to commit, or the abetment of, any 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.

xxx

(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.”

(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 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 195(1)(b)(ii) inasmuch as Section 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 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 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 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 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;

jurisdiction;

(d) take sufficient security for the appearance for 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.

xxx

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

in section 195.”

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 wouldbeaccused

under Section 340, CrPC prior to making 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.

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.

“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 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, 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 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 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 three parties, to justify how the seized currency came

to be in the Appellant’s possession. This was done to exonerate the

Appellant/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 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,

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 subquestions:

6.1 Whether an offence under Section 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 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 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 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

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 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 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 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]).

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 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

longdrawn

litigation which was either instituted by

himself or somebody else who can be influenced by

him and thereby preempt

the prosecution for the

entire long period 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

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 administration of justice.

11. The scope of the preliminary enquiry envisaged in

Section 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 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.

13. The threeJudge

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…

…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 subsection

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 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 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 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 subsection

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)

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 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 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 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), 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 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 to divest the respondents out of their

share in the disputed property. Since the respondents’

application under Section 340, CrPC was not 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 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 threeJudge

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 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 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

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, 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 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

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.

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 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 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 threeJudge

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

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 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 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.

37677)

“(i) The underlying purpose of enacting Sections

195(1)(b) and (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 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 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

420, 467, 468, 471 read with 120B

IPC alleging that

the appellants had conspired and fabricated an

agreement dated 2671978

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 2791983.

The appellants thereafter filed a civil

suit on 921984

wherein 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 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 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 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.

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.

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 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 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 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 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 had held on the facts of that

case, that since the criminal Court had taken cognizance of the

offence long before filing of the original document 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 threeJudge

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 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)

(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 “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.

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 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 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 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 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.”

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 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:

“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 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 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 Section 463, and punishable

under Sections 471, 475 or 476 of the Indian Penal

Code, when such offences are alleged to have been

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 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)

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 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 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 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

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 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)

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 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 showcause

affidavit in

the contempt petition filed by the appellant. Resultantly, the High

Court dropped the contempt case. 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 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 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 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 Court, by a person

who is not yet party to proceedings before the

Trial Court, is an offence committed “in relation

to” such proceedings for 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 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 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

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,

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 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 decisionmaking

process. However, it may 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 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.

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 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 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

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 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 victim of a crime is rendered

remediless, has to be discarded.

24. There is another consideration which has to be

kept in mind. Subsection

(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 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 adjourn the hearing of the

case if it is brought to its notice that an appeal is

pending against the decision arrived at in the judicial

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 timeconsuming.

It is also to be noticed that there is no provision of

appeal against 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 reluctant to

give evidence and the evidence gets lost. This

important consideration dissuades us from accepting

the broad interpretation sought to be placed upon

clause (b)(ii).

xxx

26. Judicial notice can be taken of the fact that the

courts are 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 nonfiling

of a complaint 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 proactive

in making

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 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).