REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 211 OF 2019

SH. NARENDRA KUMAR SRIVASTAVA … APPELLANT

   VERSUS

THE STATE OF BIHAR & ORS.        ... RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

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

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

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

High Court of Judicature at Patna has allowed the revision petition

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

22.12.2016 passed by the learned Assistant Chief Judicial

Magistrate­VII, Motihari, taking cognizance of an offence

punishable under Section 193 of the Indian Penal Code, 1860 (for

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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

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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

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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.

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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

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

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

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

278.

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

consideration is  whether the  Magistrate  was justified in taking

cognizance of an offence punishable under Section 193 of the IPC

on the basis of a private complaint?  

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

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

as follows:  

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

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

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

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

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

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

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

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

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

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

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

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

(iii) of any criminal conspiracy to commit such offence,

except  on the complaint in  writing  of the public servant concerned or of  some other public servant to whom he is administratively subordinate;

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

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

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

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offence specified in sub­clause (i) or sub­ clause (ii),[except on the complaint in writing of  that Court or by such officer of the  Court  as  that  Court  may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].

(2) Where a complaint has been made by a public servant under clause (a) of sub­ section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

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

(3) In clause (b) of sub­section (1), the term "Court" means a Civil, Revenue or Criminal Court,  and includes a tribunal constituted by or  under a Central,  Provincial  or  State Act if declared by that Act to be a Court for the purposes of this section.

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

Provided that—

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

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

(emphasis supplied)

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

that the section deals with two separate set of offences:

(i) of any offence punishable under

Sections  193 to  196 (both inclusive),

199, 200, 205 to 211 (both inclusive)

and 228 of  IPC, when such offence is

alleged to have been committed in, or

in relation  to,  any  proceeding in  any

Court; [Section 195(1)(b)(i)]

(ii) of any offence described in section

463, or punishable under section 471,

section 475 or section 476, of IPC,

when such offence is  alleged  to  have

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been committed in respect of a

document produced or given in

evidence in a proceeding in any Court.

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

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

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

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

false evidence  and  offences  against  public justice,  whereas, the

second category of offences relates to offences in  respect of a

document produced or given in evidence in a proceeding in any

court.

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

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

but contains  no direction for the guidance of the court  which

desires to initiate prosecution in respect of an offence alleged to

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

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

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

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

behalf.

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

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

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

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

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

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub­ section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub­section (1) in respect of that  offence nor  rejected an application for the making of such complaint, be

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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

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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…..."

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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

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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

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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

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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

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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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