Therefore the Court held that Section 195(1)(b)(i), CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193, IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 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 Section 195(1)(b)(i), CrPC. [Para 24]
BHIMA RAZU PRASAD VS. STARE, REP BY DEPUTY SUPERTINDENT OF POLICE, CBI/SPE/ACUII
CRIMINAL APPEAL NO. OF 2021 (arising out of S.L.P. (Criminal) No. 5102 of 2020) - Decided on March 12th, 2021
The present case was decided by a division bench of the Supreme Court consisting of Justice Mohan M. Shantanagoudar and Justice Vineet Saran.
The Appellant/Accused No. 1 was working as Regional Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd. On 4.01.2001 case was registered against the Appellant under Section 120B read with Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (“IPC”); and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC Act”). During the course of investigation, Accused No. 2 V.S. Krishnan (Appellant in the connected appeal arising out of S.L.P. (Crl.) No. 6720 of 2020) and Accused No. 3 Murugesan (Appellant in the connected appeal arising out of S.L.P. (Crl.) No. 6327 of 2020) wrote letter dated 4.02.2002 to the Superintendent of Police, claiming that the seized currency did not belong to the Appellant/Accused No. 1. They contended that Accused No. 2 had entered into agreement of sale dated 24.01.2001 to purchase properties from Accused No. 3, for which a sum of Rs 80 lakhs was to be paid in advance.
Investigation conducted by the Respondent revealed that the market value fixed by the State Government in respect of the two properties described in sale deed dated 24.01.2001, was much below Rs 80 lakhs. Further, that the first property was equitably mortgaged with the Tamil Nadu Mercantile Bank Ltd. since 4.9.1998; whereas a portion of the second property had already been sold to other persons. No objection was raised by the accused at the stage of taking of cognizance. However, during the course of trial, the Accused argued that complaint under Section 195(1)(b) of the Code of Criminal Procedure, 1973 (“CrPC”) was necessary for prosecuting the case under Section 193, IPC. The Trial Court rejected this argument by referring to the opinion of the Constitution Bench in Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another, (2005) 4 SCC 370.
The High Court relied upon the decision of a threeJudge Bench of this Court in , and the later Constitution Bench decision in Iqbal Singh Marwah (supra) which affirmed the view taken in Sachida Nand Singh, while laying down its opinion. Though these decisions were rendered in the context of interpreting Section 195(1)(b)(ii) of the CrPC, the High Court held that Section 195(1)(b)(i) is analogous to the former provision.
In the present case, the allegation against Accused Nos. 2 and 3 is that they colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself, which is deemed to be “a stage of a judicial proceeding” under Explanation 2 of Section 193. Had the genuineness of the sale deed been accepted, the Respondent may have erroneously opined that the seized currency belonged to Accused No. 2, and consequently abandoned proceedings under Section 13(1)(e), PC Act against the Appellant. Therefore Section 193, IPC is squarely applicable to the allegations at hand.
Hence, the primary question of law that arises for consideration in these appeals is
Whether Section 195(1)(b)(i), CrPC bars lodging of case by the investigating agency under Section 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?
Aforementioned observations of this Court in Patel Laljibhai Somabhai (supra), as cited in Sachida Nand Singh (supra), 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. [Para 7]
The view taken in Sachida Nand Singh was subsequently affirmed by the Constitution Bench in Iqbal Singh Marwah (supra). In that case, it was alleged that the appellants had created a fictitious will to divest the respondents out of their share in the disputed property. Since the respondents’ application under Section 340, CrPC was not disposed of, they filed a criminal complaint for prosecuting the appellants under Sections 192 and 193, as well as Sections 463 and 471, IPC. The Metropolitan Magistrate in that case held that both Sections 195(1)(b)(i) and (ii), CrPC operated as a bar against taking cognizance of these offences.
The Court further noted that the situation wherein the offence as enumerated under Section 195(1)(b)(ii) has been committed earlier, but the document is produced later in court is not in consonance with the object of Sections 195(1)(b)(i) either. Even in Surjit Singh, this Court had held on the facts of that case, that since the criminal Court had taken cognizance of the offence long before filing of the original document before the civil Court, the bar under Section 195(1)(b)(ii) would not apply.
This brings us to 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]
This Court thereafter proceeded to distinguish between the offence of fabricating false evidence under Sections 192 and 193, IPC and the offence of forgery. It noted that the averments made by the appellants in their complaints pertained exclusively to giving of false evidence and did not disclose the ingredients of forgery as defined under the IPC. Hence, this Court in Bandekar Brothers upheld the respondents’ contentions, and opined that Iqbal Singh Marwah would not benefit the appellants in that case. Even though the false evidence was created outside of the Court, it was by the appellants’ own admission, created “in relation to” proceedings before the Court. [Para 10]
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 decisionmaking 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. [Para 16]
It is possible that Courts may be more proactive 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. However, the general principles of statutory interpretation laid down by the Constitution Bench should not be disregarded. This is especially given that the Court did not consider Section 195(1)(b)(ii) separately but provided a holistic view of the scheme under Section 195(1)(b).
Therefore the Court held that Section 195(1)(b)(i), CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193, IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 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 Section 195(1)(b)(i), CrPC. [Para 24]
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Keerthana R
