This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article analyses Section 195(1)(b)(i) of the Code of Criminal Procedure based on the decision given by the Apex Court on Bhima Razu Prasad v. State.
Section 195(1)(b)(i) of Code of Criminal Procedure (CrPC) deals with the prosecution for contempt of the lawful authority of public servants, for offences against public justice and specifically for offences relating to false evidence given in evidence mentioned in Chapter XI of the Indian Penal Code (IPC). The holistic view of this Section aims to provide protection to people from being unnecessarily harassed by vexatious prosecution in retaliation by restricting the power of the Magistrate to take cognizance under Section 190, IPC. Under Section 195 of CrPC, cognizance can only be taken by the court if the complaint is filed by the public servant concerned or the court mentioned therein. This article has thus analysed the approach of the Supreme Court in the concerned case.
Brief facts of the case
- The appellant/accused no. 1 was working as a Regional Manager (South) at Rashtriya Ispat Nigam Ltd at Chennai. A case was registered against accused no. 1 under Section 120B read with Sections 420, 467, 468 and 471, IPC, and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act) on 4th January 2001.
- Subsequently, upon conducting a search at the appellant’s residence an amount of Rs. 79,65,900/ (“seized currency”), jewellery and property papers, were seized. Since the assets found were disproportionate to the appellant’s income, the case of another asset was registered under Section 13(2) read with Section 13(1)(e) of the PC Act was registered on 9th March 2001.
- During the course of the investigation, accused no 2 and 3 wrote a letter to the Superintendent of Police on 4th February 2002 claiming that seized currency did not belong to the appellant. It was contended that accused no 2 had entered into an agreement of sale to purchase properties from accused no 3, for which 80 lakhs were to be paid in advance.
- Since accused no. 2 was not going to be available on the date of execution, had entrusted the appellant with the amount (seized currency) as well as a duplicate copy of the agreement signed by him. Accused no. 3 had to execute the agreement in presence of the appellant. However, since the raid was conducted at the house of the appellant, agreement of sale could not be executed and therefore the accused no 2 and 3 seek recovery of the seized currency.
- Accused no. 2 even produced the relevant documents and books of accounts, however, the appellant had not taken any such defence at the time of search nor produced any duplicate copy of the sale deed. While on the other hand based, on the investigation conducted by the respondent, their claim was that the accused nos. 2-4 along with the appellant have plotted together to fabricate a false sale deed, and present a false explanation of escrow arrangement amongst the three parties, to protect themselves from any legal action and justify how the seized currency came to be in the appellant’s possession.
- This led to another charge being framed against the appellant and the accused nos. 2-4 under Section 120B read with Section 193 of the IPC, in addition to other charges under the PC Act.
Before the Trial Court
While at the stage of taking cognizance, no objection was raised by the accused. However, upon trial. It was argued that for prosecuting the case under Section 193, IPC, a complaint under Section 195(1)(b) of the Code of Criminal Procedure (CrPC) was necessary. This argument was rejected by the trial court citing the case of Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another, (2005) and on finding that it was not proved by accused no 2 had entrusted the seized currency to the appellant for holding in escrow the amount till sale transaction took place with accused no 3.
The trial court then 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 a fine of Rs 1 lakh each.
Appeal before the High Court
Accused no. 2 and 3 reiterated similar points on the requirements of complying with Section 195(1)(b)(i) and 340 of the CrPC prior to framing of charge under Section 193 of IPC. They reiterated how it was illegal and without jurisdiction for the trial court to frame the charge without conducting an inquiry and making a written complaint. The High Court too rejected their contention and held that the procedure under Section 195(1)(b)(i) is mandatorily applicable only when the offence directly affects the administration of justice. For that, the offence must have been committed after a document is produced in evidence before the court. Since in the present case, the documents were fabricated in the investigative phase before they were produced in the trial court, the said sections will not be applicable.
The High Court referred to the case of Sachida Nand Singh and Anr. v. State of Bihar and Anr., (1998) whose decision was later affirmed in the Iqbal Singh Marwah case. The High Court upheld the decision of the trial court that the accused had conspired to fabricate false evidence to exonerate the appellant from legal prosecution. However, due to the long passage of time, the sentences awarded were reduced. Though the decision in the above-mentioned cases was related to the interpretation of Section 195(1)(b)(ii) of CrPC, the High Court while referring to the cases held that Section 195(1)(b)(i) is analogous to the former provision and therefore all observations made on that decision will be equally applicable in the present case.
Appeal before the Supreme Court
Under the concerned appeals, the counsel for appellants argued that Section 195(1)(b)(i), CrPC cannot be interpreted to be analogous to Section 195(1)(b)(ii), therefore the judgment in Iqbal Case will not be applicable in the present case.
They stressed that there is an absolute bar against taking cognizance for offences under Section 195(1)(b)(i) without having a written complaint by the concerned court. Thus, the prosecution, in this case, is unsustainable.
They relied on the case of Bandekar Brothers Pvt. Ltd. And Another v. Prasad Vassudev Keni and Others (2020) in support of their contentions.
Contention by Respondent
That the Iqbal case is applicable and sought to distinguish those cases relied upon by the appellants as they do not apply in the present case.
Issues before the Supreme Court
- Whether Section 195(1)(b)(i), CrPC bars filing of the case by the investigating agency under Section 193, IPC, concerning the offence of giving false evidence which is committed at the stage of the investigation, before production of such evidence before the Trial Court?
- Whether an offence under Section 193, IPC committed during investigation before the 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?
- 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?
Analysis by the Court
Import of the words “in relation to” Section 195(1)(b)(i) of CrPC
The construction of the words “in relation to any proceeding in any court” gives this provision a wider meaning and appears to include in its scope situations wherein fabrication of false evidence has been prior to it being produced before the court of law, for the purpose of being used in the court proceedings. Thus the analogy with Section 195(1)(b)(ii) may not be applicable in all cases. The overarching principle applicable herein is that even if the offence is committed prior to submitting the fabricated evidence in court, it must have a direct or reasonably close nexus with the court proceedings.
The Section would still be attracted to an offence of fabricating false evidence before it is produced before the Court, provided that such evidence is led by a person who is a party to the court proceedings, for the purpose of leading the Court to form a certain opinion based on such evidence. Based on the decision given in the Bandekar Brother, the bar against taking of cognizance under Section 195(1)(b)(i) may also apply to a person who was initially not a party to the court proceedings fabricates certain evidence, and later became a party and produced it before the court or falsely represents as a witness before the Court on the basis of such evidence, to divert the Court’s opinion on a material point and redirect to form an erroneous opinion. However, the situation will be different where a person fabricates false evidence for the purpose of misleading the investigating officer, which may not be considered to have any direct nexus with the subsequent court proceedings.
The Court observed that there is an indirect nexus in as much as if any wrongdoing is not suspected at all by the investigating agency and the case gets committed for trial by the court, it might then impact the judicial decision making of the court when the evidence is being produced for the court’s perusal. On the other hand, it may be equally possible that even if such evidence does appear sufficiently convincing, it may be dropped against the accused by the investigating agency and who would rather divert its time and resources elsewhere. Therefore, the offence may never reach the stage of court proceedings. Further, if in the future it does come to light that the evidence was falsely adduced, the loss will have to be suffered by the investigating agency who will then be forced to conduct a fresh investigation.
In that case, even though the offence is one that affects the administration of justice, it is the investigating agency, and not the court, which is the aggrieved party in such circumstances. The Court further goes on to justify the non-consideration of a wider interpretation. The Court stated in such circumstances, the investigative agency should not be left remediless against persons producing false evidence to meddle with the investigation process. The present case still concerns offences under the PC Act and the harm to the public interest and state reputation would still continue to suffer immense harm if corrupt public servants are facilitated by third parties in hiding their assets from scrutiny. Hence, such interpretation must be avoided which negates against the speedy and effective trial of such persons.
Whether “stage of a judicial proceeding” under Explanation 2 to Section 193 IPC is synonymous with “proceeding in any court” under Section 195(1)(b)(i) CrPC
Explanation 2 deems an investigation preliminary to a proceeding before a Court of Justice to be a “stage of a judicial proceeding” in reference to this Section and it would apply even in the case where such investigation may not take place before a Court of Justice.
The objective of Section 195(1)(b) aims to limit the right to make complaints 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, it is a requirement of the section that there must be an intention on part of the alleged accused to directly mislead the court into forming a certain opinion.
Though the criminal investigation is construed as a stage of judicial proceeding so far it leads up to the issue of process and trial, however, it will not be considered a proceeding in reference to a court under Section 195(1)(b), CrPC before the court has taken judicial notice of such investigation. The Court then went to distinguish between the words “judicial proceedings” and “proceeding in any court”.
The Court then referred to a few cases and observed that wherein the law deems proceedings before a certain authority to be judicial proceedings, then it would be considered as proceedings in any court for the purpose of Section 195(1)(b)(i). However, the facts of those cases were distinguished from the present appeal as they involved false statements made on oath/affidavits in a judicial proceeding and before an authority deemed as a court under the law.
As per CrPC, the definition of “judicial proceeding” in Section 2(i) CrPC, includes any proceeding in the course of which evidence is or may be legally taken by oath. To that end, the investigation under the PC Act was admittedly a stage of a judicial proceeding by virtue of Explanation 2 to Section 193, IPC. However, as per the facts of this case, neither was the fabricated evidence given on oath before the investigating officer nor is the investigating authority under the PC Act deemed to be a “court” for the purpose of Section 195(1) (b), CrPC.
In the present case, it is the investigating authority/agency which has been directly affected due to false evidence presented by the appellants and not the Trial Court. In the first instance, the appellant’s intention cannot be construed as to be misleading the Trial Court, their goal was to ensure that accused no. 1 is exonerated of wrongdoing at the investigation stage itself. It was only after they were charged under Section 193 IPC, that the appellants reiterated the made-up story of escrow arrangement 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.”
Thus, the investigating agency under the PC Act cannot be equated with a proceeding in a court of law under Section 195(1)(b)(i), CrPC, though it is deemed to be a stage of a judicial proceeding under Section 193, IPC. That the court would have taken a different view, had the investigation agency not been suspicious of accused no 2 and 3, and the Trial Court itself would have discovered the pretext created by them.
Since in the present case, the investigating agency had been judicious, the Court refrained from requiring an independent inquiry and written complaint by the Trial Court. The Court stated it would be unjust and impracticable to interfere with the findings of the Trial Court and the High Court. Thus, Section 195(1)(b), CrPC will not bar prosecution by the investigating agency for an offence punishable under Section 193, IPC which is committed during the stage of the investigation. Provided, the investigating authority must have lodged a complaint/filed a case under Section 193, IPC before the commencement of proceedings and production of such evidence before the trial court.
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