REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION  

CRIMINAL   APPEAL NOS  .1261-1262 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION(CRL.) NOS. 2786-2787 OF

2017]

CENTRAL BUREAU OF INVESTIGATION   …Appellant

Versus M. SIVAMANI …Respondent

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. These appeals have been preferred against Order dated 16th

October,  2015  of  the  High  Court  of  judicature  at  Madras  in

Criminal Revision Case No.2 of 2009 and M.P. No.1 of 2009.  The

High Court has quashed the proceedings against the respondent

in C.C. No.15 of 2007 pending before the Additional Special Judge

for CBI cases, Chennai.  

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2. Facts stated in the charge sheet filed by the appellant-CBI

against the respondent are that a claim petition was filed before

the  Motor  Accident  Claims  Tribunal  (MACT),  Cuddalore  seeking

compensation of Rs.22,00,000/- for death of Mohamed Farooque

in  a  road   accident  on  11th October,  2002.   The  MACT  partly

upheld the claim and awarded Rs.14,97,000/-.  On appeal of the

National  Insurance Company (Insurance Company),  the  Madras

High Court ordered investigation by CBCID into the allegation that

the claim was false.  After investigation, the CBCID filed charge

sheet.   The  matter  was  later  taken  over  by  CBI  under  the

directions of the Madras High Court which led the CBI to file the

impugned charge sheet under Sections 120-B r/w 182, 420, 468,

468 r/w 471 IPC and 13(2) r/w 13(i)(d) of Prevention of Corruption

Act, 1988 r/w 511 IPC against A1 to A9.  The respondent is A-5.

According to the CBI, the Insurance Company was cheated by A-1

by  making  false  claim  in  connivance  with  the  other  accused.

Mohamed Farooque sustained injuries by falling on his own from a

scooter and not in accident as alleged.  Different accused were

given  different  roles  in  conspiracy.  The  role  given  to  the

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respondent,  who  is  an  advocate,  is  of  misrepresentation  and

producing false evidence, knowing the true facts.  

3. During pendency of  proceedings on the charge sheet,  the

respondent moved a petition pleading bar under Section 195(1)

(a)(i)  CrPC by submitting that  cognizance in  respect  of offence

under  Section  182  IPC  could  not  be  taken  except  “on  the

complaint in writing of the public servant concerned or of some

other public servant to whom he is administratively subordinate.”

Charge sheet by CBI was not such a complaint.  The trial  court

dismissed the petition.   

4. On a revision before the High Court, the High Court reversed

the order of the trial court.  It was held:  

“….Since Section 182,  IPC is  found in the final  report,  a complaint in writing from the competent authority is very much essential and no deviation can be taken. Further, in Section 195(1)(a)(iii),  it  is  mentioned that if  there is any criminal conspiracy to commit such offence, complaint in writing  by  the  competent  authority  is  necessary.  In  the instant case, in the final report, it has been clearly stated that all accused have contrived themselves and agreed to perform the said act. Further, since the accused have been facing a charge under Section 120-B, IPC, the Court can very well come to a conclusion that each accused is having vicarious  liability.  Under  the  said  circumstances,  the defence taken on the side of the respondent is sans merit. It  has  already  been  pointed  out  that  in  respect  of  the

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offences mentioned in Section 195(1)(a)(i), a complaint in writing is very much essential. Further, as stated supra, in the instant case, Section 120-B is also available. Under the said circumstances also, a written complaint is very much essential as per the provisions of Section 195(1)(a)(i) and (iii) of Cr.P.C. The Court below has given a finding to the effect that the High Court has directed the CBI to conduct investigation and file a final report and the same has been done. It is pertinent to note that the order passed by the High  Court  is  not  at  all  sufficient  to  flout/bypass  the mandatory  provision  of  Section  195,  Cr.P.C.  Under  such circumstances, the contentions put forth on the side of the respondent are not having any substance. It has already been  discussed  in  detail  that  the  reasons  given  by  the Court-below for dismissing the present petition are totally against the existing law and the same can be eschewed.”

5. We have heard learned counsel for the parties.   

6. It  is  submitted  on  behalf  of  the  appellant  that  it  was  on

account of element of public interest that the High Court directed

CBCID to look into the allegation relating to bogus claim. By a

subsequent order dated 1st March, 2006 in W.P. Nos.7389, 39956

and 39968 of 2005, further direction was given to handover the

matter to the CBI in following terms:  

“We are, however, refraining from entering upon the details lest it may likely to prejudice either party, but we think that since the accusations are directed mainly against the local police officials, it is desirable to entrust the investigation of the matter to an independent agency like the CBI so that all concerned  including  the  Insurance  Companies  may  feel assured  that  an  independent  agency  is  looking  into  the matter  and  that  would  lend  the  final  outcome  of  the

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investigation  credibility.   Mr.  Somayaji  may  be  right  in saying  that  the  local  police  are  carrying  out  the investigation  faithfully,  but  the  same  will  lack  credibility, since  the  allegations  are  mainly  against  the  Police Department.   Therefore,  in  our  opinion,  it  would  be advisable and desirable as well as in the interest of justice to entrust the investigation to the CBI forthwith in respect of the complaints filed by the National Insurance Company as well as other Insurance Companies.

We accordingly direct that the CBI shall investigate into the said complaints filed by the Insurance Companies as well as complaints  relating  to  the  use  of  fake  FIRs  by  different police stations.  … … …”  

In view of above, on correct interpretation of the provision,

bar of Section 195 cannot apply in view of direction of the High

Court.  

The question is whether there is non-compliance of Section

195(1)(a)(i)  CrPC  in  court  taking  cognizance  of  the  offence  in

question , i.e. Section 182 IPC.   

7. Section 195(1) CrPC is as follows:  

“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, or attempt to commit, such offence, or

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(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  offence  specified  in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate.”

(Emphasis added)

8. Contention raised on behalf of the appellant-CBI is that the

object  and  purpose  of  the  bar  created  under  the  law  against

taking cognizance in respect of the specified offences is to control

frivolous or vexatious proceedings by private parties.  In State of

U.P. versus Mata Bhikh1 it was observed :  

1  (1994) 4SCC 95 `

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“  6.  The object  of  this  section is  to  protect  persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or  frivolity  of  disposition  at  the  instance  of  private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the Court has no  jurisdiction  to  take  cognizance  of  any  of  the  offences mentioned therein unless there is a complaint in writing of ‘the public  servant concerned’  as  required by the section without which the trial under Section 188 of the Indian Penal Code becomes void ab initio.  See Daulat  Ram v.  State of Punjab [AIR 1962 SC1206].  … … …”  

  9. It is submitted that the scheme of the provision shows that

the specified offences in respect of whom the bar is created have

direct  impact on administration of  public justice.   As against a

private party, it is only the public servant or his superior to whom

he is administratively subordinate is permitted to file a complaint.

Reliance has been placed on the judgment of this Court in Iqbal

Singh Marwah versus Meenakshi Marwah2 laying down that

interpretation of the provision which leads to a situation where

victim of crime is rendered remediless has to be discarded and

interpretation  should  advance  the  object3.   The  Constitution

Bench of this Court interpreted the bar under Section 195(1)(b)(ii)

to be limited to a document where forgery was committed after it

2  (2005) 4 SCC 370 3  Para 23 & 25.

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was produced or given in evidence before the court.   It was held

that if forgery was committed before the document was produced

before  the  court,  the  bar  under  the  said  provision  was  not

applicable.  In  Perumal versus Janakai4  it  was held that bar

under the provision will not apply if a High Court, as a superior

court, directs a complaint to be filed in respect of offence covered

by  Section  195(1)(b)(i).   It  was,  thus,  submitted  that  in  the

present case protection under Section 195(1)(a)(i) cannot apply

as  it  was  not  at  the  instance  of  any  private  party  but  at  the

instance of the High Court that CBI investigation was directed to

be  conducted.   “Other  public  servant  to  whom  he  is

administratively subordinate” should not exclude the High Court.   

10. Learned counsel for the respondent however supported the

view taken by the High Court.  It was submitted that there was no

reason to ignore the statutory bar against taking cognizance of an

offence under Section 182 except on the complaint in writing of

the public servant concerned or who is administrative superior to

whom which expression could not include the High Court.  It was

submitted that though on failure to perform a public  duty,  the 4  (2014) 5 SCC 377

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public servant or his superior may be directed by the High Court

by a mandamus to file a complaint, direction of the High Court to

conduct  investigation was not  enough to exclude the statutory

bar against taking of cognizance.  Reliance has been placed on

M.S.  Ahlawat  versus  State  of  Haryana5 laying  down  as

follows:     

“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.”

11. We have considered the rival submissions.  We find merit in

the contention raised on behalf of the appellant.  While the bar

against cognizance of a specified offence is mandatory, the same

5  (2000) 1 SCC 278

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has to be understood in the context of the purpose for which such

a bar is created.  The bar is not intended to take away remedy

against a crime but only to protect an innocent person against

false or frivolous proceedings by a private person.  The expression

“the public servant or his administrative superior” cannot exclude

the High Court.  It is clearly implicit in the direction of the High

Court quoted above that it was necessary in the interest of justice

to take cognizance of the offence in question.  Direction of the

High  Court  is  at  par  with  the  direction  of  an  administrative

superior public servant to file a complaint in writing in terms of

the  statutory  requirement.   The  protection  intended  by  the

Section  against  a  private  person  filing  a  frivolous  complaint  is

taken  care  of  when  the  High  Court  finds  that  the  matter  was

required to be gone into in public interest.  Such direction cannot

be rendered futile by invoking Section 195 to such a situation.

Once the High Court directs investigation into a specified offence

mentioned in Section 195, bar under Section 195(1)(a) cannot be

pressed  into  service.   The  view  taken  by  the  High  Court  will

frustrate the object of law and cannot be sustained.   

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12. Accordingly,  we  allow  these  appeals  and  set  aside  the

impugned order.  Since the matters have been hanging in fire for

the last more than 15 years, it will be in the interest of justice that

the  proceedings  are  concluded  as  far  as  possible  within  six

months.     

…………………………………..J. (ADARSH KUMAR GOEL)

…………………………………..J. (UDAY UMESH LALIT)

NEW DELHI 1ST AUGUST, 2017.

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