Code of Criminal Procedure, 1973 – s.195(1)(b) – Penal Code, 1860 – ss.420, 467, 468 and 471 – Prevention of Corruption Act, 1988 – s.13(2) r/w. s.13(1)(d) – A case was registered against the appellant/accused no.1 u/ss.420, 467, 468 and 471 of IPC and s.13(2) r/w. s.13(1)(d) of the PC Act – Thereafter, the respondentinvestigative agency conducted search at the appellant’s residence and found an amount of Rs.79,65,900/-, in addition to jewellery and property papers – Assets were found disproportionate to the appellant’s known sources of income – Another separate case was registered u/s. 13(2) r/w. s.13(1)(d) of the PC Act – During the course of investigation, accused no. 2 claimed that he had entered into an agreement to sale to purchase properties from accused no.3 and since he (accused no.2) was not available on the date of execution of the agreement, he had entrusted the amount of Rs. 80 lakhs to the accused no.1 – Since, the accused no.1 house was raided, the money was not paid and agreement to sale was not executed – Hence, accused no. 2 and 3 sought recovery of money – However, the respondent-investigation agency revealed that the market value fixed by the State Government of the said properties was much below Rs.80 lakhs – The license of the stamp vendor/accused no.4, through whom the stamp papers of sale deed were issued, was cancelled in the year 1992 and sale deed were issued in the year 2001 – So, the respondent-investigative agency alleged that the accused no.1 conspired with accused no.2-4 to fabricate false deed of agreement to sale for the purpose of being shielded from legal action in the disproportionate assets case – The charges were framed – The accused contended that complaint u/s.195(1)(b), Cr.P.C. was necessary for prosecuting the case u/s.193, IPC – The contention was rejected by the trial Court – The trial Court convicted the appellant/accused no.1 u/s.13(2) r/w. s.13(1)(e) of the PC Act as well as ss.120B and 193 of the IPC and accused no.2 and 3 were convicted u/s.120B and s.193 of the IPC – Before the High Court, the accused no. 2 and 3 reiterated that the requirements of s.195(1)(b)(i) and s.340, Cr.P.C. were not complied with prior to framing of charge u/s. 193 of IPC – The said contention was again rejected by the High Court – 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 – Whether s.195(1)(b)(i),Cr.P.C. bars lodging of case by the investigating agency u/s. 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 – Held: S. 195(1)(b)(i), Cr.P.C. will not bar prosecution by the investigating agency for offence punishable u/s.193, IPC, which is committed during the stage of investigation – This is provided that the investigating agency has lodged complaint or registered the case u/s. 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 s.195(1)(b)(i), Cr.P.C. – Thus, appellants directed to surrender for serving out the rest of their sentence, if they are not already in custody.
Code of Criminal Procedure, 1973 – s.195(1)(b)(i) – Whether an offence u/s.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 u/s. 195(1)(b)(i), Cr.P.C. – Held: The words “in relation to” u/s. 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 – The Construction of the words “in relation to” must be controlled by the overarching principle as stated in Patel Laljibhai Somabhai and Sachida Nanda Singh, which was affirmed by the Constitution Bench in Iqbal Singh Marwah – That is, even if the offence is committed prior to giving of the fabricated evidence in the Court, it must have a direct or reasonably close nexus with the court proceedings.
Code of Criminal Procedure, 1973 – s.195(1)(b)(i) – Penal Code, 1860 – s.193 – Whether the words “stage of a judicial proceeding” under Explanation 2 to s.193, IPC can be equated with “proceeding in any court” u/s.195(1)(b)(i), Cr.P.C. – Held: The purpose of s.195(1)(b)(i), Cr.P.C., there must be an intention on part of the alleged offender to directly mislead the Court into forming a certain opinion by commission of offence u/s.193, IPC – Though a criminal investigation is certainly a stage of a judicial proceeding insofar as it may culminate in issue of process and trial against the accused, it would not be a proceeding in relation to a certain Court u/s.195(1)(b)(i), Cr.P.C. before the Court has even taken judicial notice of such investigation – The difference between a “stage” of a judicial proceeding and the judicial proceeding itself must be emphasized in this regard.
Code of Criminal Procedure, 1973 – s.195(1)(b)(i) and s.195(1)(b)(ii) – Difference between – Held: There is a pertinent difference in the wording of s.195(1)(b)(i) and s.195(1)(b)(ii) inasmuch as s.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 s.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.
Dismissing the appeals, the Court
HELD: 1. General overview of the law on Section 195(1) (b)(ii), Cr.P.C.
1.1 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 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. [Para 7][1037-F-G]
1.2 The observations of the Supreme Court in Patel Laljibhai Somabhai, as cited in Sachida Nand Singh, 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), this Court finds 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. The view taken in Sachida Nand Singh was subsequently affirmed by the Constitution Bench in Iqbal Singh Marwah. [Paras 7 and 8][1040-B-H]
1.3 Similar to Sachida Nand Singh, the Constitution Bench also referred to the observations made by the three-Judge Bench in Patel Laljibhai Somabhai 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. [Para 8][1045-A-C]
2. Import of the Words “in relation to” in Section 195(1)(b) (i), CrPC.
2.1 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. [Para 9] [1045-C-E]
2.2 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 and Sachida Nand Singh, which was affirmed by the Constitution Bench in Iqbal Singh Marwah. 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. [Para 14][1049-B-C]
2.3 Looking to the decision in Bandekar Brothers, 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. [Para 15][1049-C-E]
2.4 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 decision-making 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. It is possible that Courts may be more pro-active 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 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. [Paras 16 and 17][1049-F-H; 1050-A; 1051-F-G]
2.5 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. [Para 17.1][1052-A-B]
2.6 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. [Para 17.2][1052-D-E]
2.7 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, this Court is 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. [Para 17.3][1052-G-H; 1053-A]
3. Whether “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC is synonymous with “proceeding in any court” under Section195(1)(b)(i),CrPC?
3.1 The purpose of Explanation 2 to Section 193, IPC is evidently to ensure that a person who fabricates false evidence before an investigating or inquiring authority prior to the trial of the case does not escape penalty. This encompasses all nature of proceedings, whether civil or criminal. However, whether the commission of such offence would require the complaint of a Court under Section 195(1)(b)(i) would depend upon the authority before whom such false evidence is given. For example, if a person gives false evidence in an inquiry before the Magistrate under Section 200, CrPC, that would undoubtedly be an offence committed before a Court under Section 195(1)(b)(i), CrPC. However, this would not be the case where false evidence is led before an investigating officer prior to the Court having taken cognizance of the offence or the case being committed for trial. [Para 20.1][1054-F-H]
3.2 The object and purpose of Section 195(1)(b), CrPC must be borne in mind whilst determining whether the fabrication of false evidence during a stage of a judicial proceeding amounts to having made such fabrication in relation to a proceeding before the Court. At the cost of repetition, it must be emphasized that Section 195(1)(b) is meant to restrict the right to make complaint in respect of certain offences to public servants, or to the relevant Court, as they are considered to be the only party who is directly aggrieved or impacted by those offences. Furthermore, for the purpose of Section 195(1)(b)(i), CrPC, there must be an intention on part of the alleged offender to directly mislead the Court into forming a certain opinion by commission of offence under Section 193, IPC. Though a criminal investigation is certainly a stage of a judicial proceeding insofar as it may culminate in issue of process and trial against the accused, it would not be a proceeding in relation to a certain Court under Section 195(1)(b) (i), CrPC before the Court has even taken judicial notice of such investigation. The difference between a “stage” of a judicial proceeding and the judicial proceeding itself must be emphasized in this regard. [Para 20.2][1055-A-D]
3.3 In the present case, it is not the Trial Court but the Respondent authority/agency which has been directly impacted due to fabrication of evidence by the Appellants/accused. The Appellants’ intention was not to mislead the Trial Court, at least not at the first instance. Rather, their goal was to ensure that the Appellant/Accused No. 1 was cleared of wrongdoing at the stage of investigation itself. It was after being charged under Section 193, IPC, that the Appellants/accused reiterated the fictitious escrow arrangement story before the Trial Court so as to prove their innocence. Hence it cannot be said that the offence under Sections 120B read with 193, IPC was committed by the Appellants “in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC. [Para 22.1][1057-G-H; 1058-A]
3.4 Had this been a case wherein the Respondent had not developed any suspicion against Accused Nos. 2 and 3, and the Trial Court had subsequently discovered the subterfuge caused by them, we may have taken a different view. As this Court has noted, where the fabrication of evidence has escaped the scrutiny of the investigating agency, and the case is subsequently brought to trial, such evidence would have direct bearing on the trial court’s opinion and hence the bar under Section 195(1)(b)(i), CrPC may be applicable. However, in the present case, the investigating agency has been sagacious enough to detect the commission of offence under Section 193, IPC at the preliminary stage. Therefore, as stated earlier, it would be unjust and impracticable to insist upon the requirement of an independent inquiry and written complaint by the Trial Court in such a scenario. [Para 22.3][1058-D-F]
3.5 Thus, the questions of law stated stand answered against the Appellants/accused. Even on merits, there is no valid reason to interfere with the concurrent findings of the Trial Court and the High Court. The High Court has rightly observed that the Appellant/Accused No. 1 had not raised the defence of holding the money in escrow for Accused Nos. 2 and 3 at the time of search conducted at his house on 24.01.2001. The supposed agreement of sale was also not produced. This defence was raised by Accused Nos. 2 and 3 at a highly belated stage on 4.02.2002, almost a year after the recovery of the seized currency, though the Appellant had corresponded with Accused No. 2 in May-June, 2001. It is improbable in the ordinary course of conduct that a person would wait so long to claim an amount of approximately Rs. 80 lakhs which was required for completion of sale transaction. The stamp paper on which the sale deed was made was also proved to be illegal. Hence it is apparent that the Appellants/accused entered into an elaborate conspiracy and attempted to create a false circumstance of escrow transaction for the purpose of shielding Appellant/Accused No. 1 from prosecution. In fact, the High Court has shown great lenity by reducing the sentences awarded to the Appellants/accused in view of their advanced age and delay in completion of the trial. In view of the gravity of the offence, no further benefit can be granted to them in this regard. [Para 23][1058-F-H; 1059-A-C]
Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another, (2005) 4 SCC 370 : [2005] 2 SCR 708 – followed.
Sachida Nand Singh and Another v. State of Bihar and Another, (1998) 2 SCC 493 : [1998] 1 SCR 492; Patel Laljibhai Somabhai AIR 1971 SC 1935 – relied on. Arvindervir Singh v. State of Punjab and Another, (1998) 6 SCC 352 : [1998] 3 SCR 1004; Lalji Haridas v. State of Maharashtra, (1964) 6 SCR 700; Babita Lila and Another v. Union of India, (2016) 9 SCC 647 : [2016] 7 SCR 604; Chandrapal Singh and Others v. Maharaj Singh and Another, (1982) 1 SCC 466 –
distinguished.
Bandekar Brothers Pvt. Ltd. and Another v. Prasad Vassudev Keni and Others, AIR 2020 SC 4247; State of Punjab v. Jasbir Singh, (2020) 12 SCC 96 : 2020
(2) JT 469; Surjit Singh and Others v. Balbir Singh, (1996) 3 SCC 533 : [1996] 3 SCR 70; Kailash Mangal v. Ramesh Chand (Dead) Through Legal Representative, (2015) 15 SCC 729 : [2015] 2 SCALE 615; Narendra Kumar Srivastava v. State of Bihar and Others, (2019)
3 SCC 318 : [2019] 2 SCR 643; Punjab and Haryana High Court Bar Association, Chandigarh Through its Secretary v. State of Punjab and Others, (1994) 1 SCC
616 : [1993] 3 Suppl. SCR 915; Punjab & Haryana High Court Bar Association v. State of Punjab and Others, (1996) 4 SCC 742 : [1996] 2 Suppl. SCR 787 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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