PERUMAL Vs JANAKI
Bench: P SATHASIVAM,J. CHELAMESWAR
Case number: Crl.A. No.-000169-000169 / 2014
Diary number: 38959 / 2011
Advocates: T. HARISH KUMAR Vs
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.169 OF 2014
(Arising out of Special Leave Petition (Criminal) No.1221 of 2012)
Perumal …Appellant
Versus
Janaki …Respondent
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of
the High Court of Madras, the unsuccessful petitioner
therein preferred the instant appeal.
3. A petition in C.M.P. No.4561 of 2010 (private
complaint) under section 200 of the Code of Criminal
Procedure, 1973 (hereinafter for short referred to as “the
Cr.P.C.”) filed by the appellant herein against the
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respondent came to be dismissed by the Judicial
Magistrate No.2 at Pollachi by his judgment dated 31st
August 2010. Challenging the same, the abovementioned
Crl. R.C. was filed.
4. The factual background of the case is as follows:
5. The respondent was working as a Sub-Inspector in an
All-Women Police Station, Pollachi at the relevant point of
time. On 18th May 2008, one Nagal reported to the
respondent that the appellant herein had cheated her.
The respondent registered Crime No.18/08 under sections
417 and 506(i) of the Indian Penal Code (hereinafter for
short referred to as “the IPC”). Eventually, the
respondent filed a charge-sheet, the relevant portion of
which reads as follows:
“On 26.12.07, that the accused called upon the de-facto complainant for an outing and while going in the night at around 10.00 via Vadugapalayam Ittori route the accused enticed the de-facto complainant of marrying her and had sexual interaction several times in the nearby jungle and on account of which the complainant became pregnant and when she asked the accused to marry him he threatened the complainant of killing her if she disclosed the above fact to anybody.
Hence the accused committed an offence punishable u/s. 417, 506 (i) of IPC.”
[emphasis supplied]
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6. The appellant was tried for the offences mentioned
above by the learned Judicial Magistrate No.1, Pollachi.
The learned Judicial Magistrate by his judgment dated 15th
March 2010 acquitted the appellant of both the charges.
7. It appears that the said judgment has become final.
8. In the light of the acquittal, the appellant filed a
complaint (C.M.P. No.4561 of 2010) under section 190 of
the Cr.P.C. on the file of the Judicial Magistrate No.2 at
Pollachi praying that the respondent be tried for an
offence under section 193 of the IPC. The said complaint
came to be dismissed by an order dated 31st August 2010
on the ground that in view of sections 195 and 340 of the
Cr.P.C. the complaint of the appellant herein is not
maintainable.
9. Aggrieved by the said dismissal, the appellant herein
unsuccessfully carried the matter to the High Court.
Hence the present appeal.
10. The case of the appellant herein in his complaint is
that though Nagal alleged an offence of cheating against
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the appellant which led to the pregnancy of Nagal, such an
offence was not proved against him. Upon the registration
of Crime No.18/08, Nagal was subjected to medical
examination. She was not found to be pregnant. Dr.
Geetha, who examined Nagal, categorically opined that
Nagal was not found to be pregnant on the date of
examination which took place six days after the
registration of the FIR. In spite of the definite medical
opinion that Nagal was not pregnant, the respondent
chose to file a charge-sheet with an allegation that Nagal
became pregnant. Therefore, according to the appellant,
the charge-sheet was filed with a deliberate false
statement by the respondent herein. The appellant,
therefore, prayed in his complaint as follows;
“It is, therefore, prayed that this Hon’ble Court may be pleased to take this complaint on file, try the accused U/s. 193 IPC for deliberately giving false evidence in the Court as against the complainant, and punish the accused and pass such further or other orders as this Hon’ble court deems fit and proper.”
11. The learned Magistrate dismissed the complaint on
the ground that section 195 of the Cr.P.C. bars criminal
courts to take cognizance of an offence under section 193
of the IPC except on the complaint in writing of that Court
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or an officer of that Court in relation to any proceeding in
the Court where the offence under section 193 is said to
have been committed and a private complaint such as the
one on hand is not maintainable.
12. The High Court declined to interfere with the matter
in exercise of its revisional jurisdiction. The operative
portion of the order under challenge reads as follows:
“3. … This court is in agreement with the conclusion of the court below in dismissing the complaint. The complaint provided very little to take action upon, particularly, where this court finds that the respondent had not in any manner tampered with the medical record so as to mulct the petitioner with criminal liability. The wording in the final report informing of the de facto complainant having been pregnant can in the facts and circumstances of the case, be seen only as a mistake.
4. In the result, the criminal revision stands dismissed.”
13. We regret to place on record that at every stage of
this matter the inquiry was misdirected.
14. The facts relevant for the issue on hand are that:-
(1) The appellant was prosecuted for the
offences under sections 417 and 506 (i) IPC.
(The factual allegations forming the basis of
such a prosecution are already noted earlier).
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(2) The respondent filed a charge-sheet with
an assertion that the appellant was responsible
for pregnancy of Nagal.
(3) Even before the filing of the charge-sheet,
a definite medical opinion was available to the
respondent (secured during the course of the
investigation of the offence alleged against the
appellant) to the effect that Nagal was not
pregnant.
(4) Still the respondent chose to assert in the
charge-sheet that Nagal was pregnant.
(5) The prosecution against the appellant ended
in acquittal.
15. The abovementioned indisputable facts, in our
opinion, prima facie may not constitute an offence under
section 193 IPC but may constitute an offence under
section 211 IPC. We say prima facie only for the reason
this aspect has not been examined at any stage in the
case nor any submission is made before us on either side
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but we cannot help taking notice of the basic facts and the
legal position.
16. The offence under section 1931 IPC is an act of giving
false evidence or fabricating false evidence in a judicial
proceeding. The act of giving false evidence is defined
under section 191 IPC as follows:
“191. Giving false evidence.— Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.—A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.”
It can be seen from the definition that to constitute an act
of giving false evidence, a person must make a statement 1 Section 193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extended to seven years, and shall also be liable to fine,
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extended to three years, and shall also be liable to fine.
Explanation 1.—A trial before a Court-martial; is a judicial proceeding.
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.
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which is either false to the knowledge or belief of the
maker or which the maker does not believe to be true.
Further, it requires that such a statement is made by a
person (1) who is legally bound by an oath; (2) by an
express provision of law to state the truth; or (3) being
bound by law to make a declaration upon any subject.
17. A police officer filing a charge-sheet does not make
any statement on oath nor is bound by any express
provision of law to state the truth though in our opinion
being a public servant is obliged to act in good faith.
Whether the statement made by the police officer in a
charge-sheet amounts to a declaration upon any subject
within the meaning of the clause “being bound by law to
make a declaration upon any subject” occurring under
section 191 of the IPC is a question which requires further
examination.
18. On the other hand, section 211 of the IPC deals with
an offence of instituting or causing to be instituted any
criminal proceeding or falsely charging any person of
having committed an offence even when there is no just or
lawful ground for such proceeding to the knowledge of the
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person instituting or causing the institution of the criminal
proceedings.
19. Irrespective of the fact whether the offence disclosed
by the complaint of the appellant herein is an offence
falling either under section 193 or 211 of the IPC, section
195 of the Cr.P.C. declares that no Court shall take
cognizance of either of the abovementioned two offences
except in the manner specified under section 195 of the
Cr.P.C.:
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.—(1) No Court shall take cognizance—
x x x x x
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that court is subordinate.”
20. In the light of the language of section 195 Cr.P.C. we
do not find fault with the conclusion of the learned
Magistrate in dismissing the complaint of the appellant
herein for the reason that the complaint is not filed by the
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person contemplated under section 195 Cr.P.C. It may be
mentioned here that as a matter of fact the Court before
which the instant complaint was lodged is not the same
Court before which the appellant herein was prosecuted
by the respondent.
21. Under section 340(1) of the Cr.P.C., it is stipulated
that whenever it appears that any one of the offences
mentioned in clause (b) of sub-section (1) of section 195
appears to have been committed in or in relation to a
proceeding before a Court, that Court either on an
application made to it or otherwise make a complaint
thereof in writing to the competent Magistrate after
following the procedure mentioned under section 340 of
the Cr.P.C.2 2 Section 340. Procedure in cases mentioned in section 195.—(1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable 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 sub-section (1) in respect of that offence nor rejected an
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22. Admittedly, the appellant herein did not make an
application to the judicial magistrate No.1, Pollachi under
section 340 to ‘make a complaint’ against the respondent
herein nor the said magistrate suo moto made a
complaint. Therefore, the learned judicial magistrate No.2
before whom the private complaint is made by the
appellant had no option but to dismiss the complaint.
23. But the High Court, in our view, is not justified in
confining itself to the examination of the correctness of
the order of the magistrate dismissing the said private
complaint. Both Section 195(1) and Section 340(2) Cr.P.C.
authorise the exercise of the power conferred under
Section 195(1) by any other court to which the court in
respect of which the offence is committed is subordinate
application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (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.”
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to. (hereinafter referred to for the sake of convenience as
‘the original court’)
24. It can be seen from the language of Section 195(4),
Cr.P.C. that it creates a legal fiction whereby it is declared
that the original court is subordinate to that court to which
appeals ordinarily lie from the judgments or orders of the
original court. (hereinafter referred to as ‘the appellate
court’) In our view, such a fiction must be understood in
the context of Article 2273 of the Constitution of India and
Section 10(1) and 15(1) of Cr.P.C4. Article 227 confers the
power of superintendence on a High Court over all courts
and tribunals functioning within the territories in relation
to which a High Court exercises jurisdiction. Section 10(1)
3 227. Power of superintendence over all courts by the High Court – (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction;
(2) Without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of
any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks
and officers of such courts and to attorneys, advocates and pleaders practicing therein; Provided that any rules made, forms prescribed or tables settled under clause (2) or
clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
4 10. Subordinate of Assistant Sessions Judges—(1) All Assistant Sessions Judges shall be subordinate to the Sessions Jduge in whose Court they exercise jurisdiction.
15. Subordination of Judicial Magistrates- (1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
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and 15(1) of Cr.P.C. declare that the Assistant Sessions
Judges and Chief Judicial Magistrates are subordinate to
the Session Judge and other Judicial Magistrates to be
subordinate to the Chief Judicial Magistrate subject to the
control of the Session Judge. It may be remembered that
Section 195(4) deals with the authority of the superior
courts in the context of taking cognizance of various
offences mentioned in Section 195(1). Such offences are
relatable to civil, criminal and revenue courts etc.5 Each
one of the streams of these courts may have their
administrative hierarchy depending upon under the law by
which such courts are brought into existence. It is also
well known that certain courts have appellate jurisdiction
while certain courts only have original jurisdiction.
Appellate jurisdiction is the creature of statute and
depending upon the scheme of a particular statute, the
forum of appeal varies. Generally, the appellate for a are
created on the basis of either subject matter of dispute or
economic implications or nature of crime etc.
5 195 (3) – In clause (b) of sub-section (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.
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25. Therefore, all that sub-section (4) of Section 195 says
is that irrespective of the fact whether a particular court is
subordinate to another court in the hierarchy of judicial
administration, for the purpose of exercise of powers
under Section 195(1), every appellate court competent to
entertain the appeals either from decrees or sentence
passed by the original court is treated to be a court
concurrently competent to exercise the jurisdiction under
Section 195(1). High Courts being constitutional courts
invested with the powers of superintendence over all
courts within the territory over which the High Court
exercises its jurisdiction, in our view, is certainly a Court
which can exercise the jurisdiction under Section 195(1).
In the absence of any specific constitutional limitation of
prescription on the exercise of such powers, the High
Courts may exercise such power either on an application
made to it or suo moto whenever the interests of justice
demand.
26. The High Courts not only have the authority to
exercise such jurisdiction but also an obligation to exercise
such power in appropriate cases. Such obligation, in our
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opinion, flows from two factors – (1) the embargo created
by Section 195 restricting the liberty of aggrieved persons
to initiate criminal proceedings with respect to offences
prescribed under Section 195; (2) such offences pertain to
either the contempt of lawful authorities of public servants
or offences against public justice.
27. A constitution Bench of this Court in Iqbal Singh
Marwah & Anr. v. Meenakshi Marwah & Anr., (2005) 4
SCC 370, while interpreting Section 195 Cr.P.C., although
in a different context, held that any interpretation which
leads to a situation where a victim of crime is rendered
remediless, has to be discarded6. The power of 6 23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. 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(i)(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 remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.
25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation
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superintendence like any other power impliedly carries an
obligation to exercise powers in an appropriate case to
maintain the majesty of the judicial process and the purity
of the legal system. Such an obligation becomes more
profound when these allegations of commission of
offences pertain to public justice.
28. In the case on hand, when the appellant alleges that
he had been prosecuted on the basis of a palpably false
statement coupled with the further allegation in his
complaint that the respondent did so for extraneous
considerations, we are of the opinion that it is an
appropriate case where the High Court ought to have
exercised the jurisdiction under Section 195 Cr.P.C.. The
allegation such as the one made by the complainant
against the respondent is not uncommon. As was pointed
earlier by this Court in a different context “there is no rule
of law that common sense should be put in cold storage”7.
Our Constitution is designed on the theory of checks and
balances. A theory which is the product of the belief that
all power corrupts - such belief is based on experience.
would he highly detrimental to the interest of society at large.
7 Para 63 of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors., 1985 (Supp.) SCC 144.
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29. The appeal is, therefore, allowed. The matter is
remitted to the High Court for further appropriate course
of action to initiate proceedings against the respondent on
the basis of the complaint of the appellant in accordance
with law.
………………………………………..CJI (P. Sathasivam)
…………………………………..……J. (J. Chelameswar)
New Delhi; January 20, 2014.
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