M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. PRASAD VASSUDEV KENI, ETC. ETC

Citation: [2020] 10 S.C.R. 1075; 2020 INSC 531

Court: Supreme Court of India

Bench: R.F. NARIMAN , NAVIN SINHA

Judgment date: 2020-09-02

Case summary

2020 INSC 531. Supreme Court of India judgment dated 2020-09-02. M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. PRASAD VASSUDEV KENI, ETC. ETC. Read the judgment...

Judgment text

[2020] 10 S. C. R. 1075 1075 M/S BANDEKAR BROTHERS PVT. LTD. & ANR A v. PRASAD VASSUDEV KENI, ETC. ETC. (Criminal Appeal Nos. 546-550 of 2017) B SEPTEMBER 02, 2020 [R. F. NARIMAN AND NAVIN SINHA, JJ. ] Code of Criminal Procedure, 1973 – s. 340 – Penal Code, 1860 – ss. 191 and 192 – Respondent/accused-proprietory concern had shared a business relationship with the appellants – Dispute C arose between the parties, as a result of which various suits were filed by the appellants – The respondents filed their written statements and counter-claims in the said suits filed by the appellants – The appellants filed criminal complaints and contended that respondent/ accused had given false evidence and had forged debit notes and made false entries in books of accounts – The Magistrate converted D the said complaints into private complaints and issued process u/ ss.

191, 192 and 193 IPC – The respondent filed revision applications against the said orders, in which it was stated that the bar contained in s. 195(1)(b)(i) of Cr. PC and the procedure u/s. 340 Cr. PC being mandatory could not be circumvented – In a counter-affidavit to E the revision application, the appellants for the first time took the plea that offences u/ss. 463, 464, 465, 467, 468, 469, 471, 474, 475 and 477-A of the IPC were also made out against the respondents, as a result of which a private complaint would be maintainable – The Additional Sessions Judge allowed the revision and quashed the complaints – Writ petitions filed by the appellants F were dismissed by the High Court – On appeal, held: Iqbal Singh Marwah case is clear authority for the proposition that in cases which fall u/s. 195(1)(b)(ii) of the Cr.

PC, the document that is said to have been forged should be custodia legis after which the forgery takes place – Further, various judgments of the Supreme Court also G lay down that when s. 195(1)(b)(i) of the Cr. PC is attracted, the ratio of Iqbal Singh Marwah case is not attracted and that therefore, if false evidence is created outside the Court premises attracting ss. 191/ 192 of the IPC, the aforesaid ratio would not apply so as to validate a private complaint filed for offences made out under these sections – A perusal of the complaints filed in the instant case, leaves no H 1075 1076 SUPREME COURT REPORTS [2020] 10 S. C. R. A manner of doubt that the first complaint attracts the provisions of s. 191 of the IPC and the second complaint attracts the provisions of s. 192 of the IPC – The debit notes that are said to be created by the respondents, it is clear that the debit notes were not ‘false documents’ u/s.

464 IPC, inasmuch they had not been made with the intention of causing it to be believed that they were made by or B under the authority of some other person – Since this basic ingredient of forgery itself is not made out, none of the sections that are sought to be relied upon in chapter XVIII of the IPC can thus said to be even prima facie attracted in the facts of the present case – The facts clearly show that the two complaints correctly invoked s. 195 C r/w. s. 340 of the Cr.

PC and were then sought to be converted into private complaints thereby attempting to fix a square peg in a round role – This has correctly been interdicted by the Sessions Court in revision and by the High Court under appeal – While it is correct to say that the order of conversion and issuing of process thereafter on a private complaint may not be correct, yet the two complaints D as originally filed can still be pursued – Therefore, the two complaints reinstated in their original form so that they may be proceeded further, following the drill of s. 195 and s. 340 of Cr. PC. Disposing of the appeals, the Court HELD: 1. It is important to understand the difference E between the offences mentioned in Section 195(1)(b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies.

What is important is that once these sections of the IPC are attracted, the offence F should be alleged to have been committed in, or in relation to, any proceeding in any Court. Thus, what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court. [Para 19][1100-C-E] G 2. Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) of the CrPC speaks of offences described in Section 463, and punishable under Sections 471, 475 or 476 of the IPC, when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1077 PRASAD VASSUDEV KENI Court.

What is conspicuous by its absence in Section 195(1)(b)(ii) A are the words “or in relation to”, making it clear that if the provisions of Section 195(1)(b)(ii) are attracted, then the offence alleged to have been committed must be committed in respect of a document that is custodia legis, and not an offence that may have occurred prior to the document being introduced in court B proceedings. Indeed, it is this distinction that is vital in understanding the sheet anchor of the Appellant’s case namely, this Court’s judgment in Iqbal Singh Marwah. [Para 22][1102-B- D] 3. The Iqbal Singh Marwah is clear authority for the C proposition that in cases which fall under Section 195(1)(b)(ii) of the CrPC, the document that is said to have been forged should be custodia legis after which the forgery takes place. [Para 29][1106-G] 4. The various Supreme Court judgments clearly lay down D that when Section 195(1)(b)(i) of the Cr.

PC is attracted, the ratio of Iqbal Singh Marwah, which approved Sachida Nand Singh and Anr. v. State of Bihar and Anr. (1998) 2 SCC 493, is not attracted, and that therefore, if false evidence is created outside the Court premises attracting Sections 191/192 of the IPC, the aforesaid ratio would not apply so as to validate a private complaint filed E for offences made out under these sections. [Para 33][1110-H; 1111-A] 5. A perusal of the complaints leaves no manner of doubt that the first complaint attracts the provisions of Section 191 of the IPC, and the second complaint attracts the provisions of F Section 192 of the IPC. However, for the first time in the counter-affidavit to the revision application that was filed by the Respondents before the Sessions Judge, the Appellants took the plea that offences u/ss. 463, 464, 465, 467, 468, 469, 471, 474, 475 and 477-A of the IPC were also made out against the G respondents. [Para 42][1117-G-H; 1118-A-B] 6.

There is no doubt that realising the difficulties in their way, the Appellants suddenly changed course, and applied to the Magistrate vide application dated 09. 05. 2011 to convert what was a properly drafted application under Section 195 read with section 340 of the CrPC, into a private complaint. A reading of the two H 1078 SUPREME COURT REPORTS [2020] 10 S. C. R. A complaints leaves no manner of doubt that they have been drafted keeping the ingredients of Sections 191 and 192 of the IPC alone in mind – the only argument from the Appellants now being that since certain debit notes were forged prior to their being introduced in the court proceedings, not only would the ratio in Iqbal Singh Marwah apply, but also that the ingredients of the B “forgery” sections of the IPC have now been made out.

While it is important to bear in mind that in genuine cases where the ingredients of forgery as defined in Section 463 of the IPC have been made out, and that therefore, a private complainant should not be left remediless, yet it is equally important to bear in mind C the admonition laid down in an early judgment of this Court. [Para 43][1118-D-G] 7. It is thus clear that even if all the averments made in the two complaints (which clearly attract the provisions of Sections 191 and 192 of the Penal Code) are put aside, and were to D concentrate only on the debit notes that are said to have been “created” by the Respondents, it is clear that the debit notes were not “false documents” under Section 464 of the IPC, inasmuch they had not been made with the intention of causing it to be believed that they were made by or under the authority of some other person.

Since this basic ingredient of forgery itself is E not made out, none of the sections that are sought to be relied upon in Chapter XVIII of the IPC can thus be said to be even prima facie attracted in the facts of this case. [Para 52][1127-B- C] 8. It now remains to deal with some of the other submissions F of appellants. The submission of appellants challenging the finding of the High Court that the Appellants did not file any proceedings under Section 482 of the CrPC to make a grievance that the complaint discloses other offences also, and that the Magistrate ought to have issued process for the same, has no legs to stand on. Whether a High Court acts suo motu under Section 482 of the G CrPC is for the High Court to decide, being a discretion vested in the High Court to be exercised on the facts of the case. As this Court has seen, the facts of this case clearly show that the two complaints dated 11. 08.

2009 correctly invoked Section 195 read with Section 340 of the CrPC, and were then sought to be H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1079 PRASAD VASSUDEV KENI converted into private complaints, thereby attempting to fit a A square peg in a round role. This has correctly been interdicted by the Sessions Court in revision, and by the High Court judgment under appeal. [Para 53][1127-D-F] 9. Writ petitions that were filed against this order have been dismissed by the impugned judgment. It seems to this Court B that the baby and the bath-water have both been thrown out together. While it is correct to say that the order of conversion and issuing of process thereafter on a private complaint may not be correct, yet the two complaints as originally filed can still be pursued. Once the Magistrate’s order had been set aside, the C Additional Sessions Judge ought to have relegated the parties to the position before the original complaints had been converted into private complaints.

Since this has not been done, this Court finds that appellants is right in stating that even though allegedly serious offences have been made out under Sections 191 and 192 of the IPC, yet the complaints themselves have now been D quashed. Therefore, reinstate the two complaints in their original form so that they may be proceeded with further, following the drill of Sections 195 and 340 of the CrPC. [Para 60][1131-B-D] Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370 : [2005] 2 SCR 708; Babu E Lal v. State of Uttar Pradesh [1964] 4 SCR 957 – followed. Patel Laljibhai Somabhai v. State of Gujarat (1971) 2 SCC 376 : [1971] Suppl. SCR 834; Daulat Ram v. State of Punjab [1962] 2 Suppl. SCR 812; Dr. S. Dutt v. State F of Uttar Pradesh [1966] 1 SCR 493; Baban Singh and Anr. v. Jagdish Singh and Anr. [1966] 3 SCR 552; Kamla Prasad Singh v. Hari Nath Singh [1967] 3 SCR 828; Kailash Mangal v. Ramesh Chand (2015) 15 SCC 729; Narendra Kumar Srivastava v.

State of Bihar and Ors. G (2019) 3 SCC 318 : [2019] 2 SCR 643; Basir-ul-Huq and Ors. v. State of West Bengal [1953] SCR 836; State of Karnataka v. Hemareddy (1981) 2 SCC 185 : [1981] 2 SCR 695; Devendra v. State of U. P. (2009) 7 SCC 495 : [2009] 7 SCR 872; Mohd. Ibrahim v. State of H 1080 SUPREME COURT REPORTS [2020] 10 S. C. R. A Bihar (2009) 8 SCC 751 : [2009] 13 SCR 1254; Mir Nagvi Askari v. CBI (2009) 15 SCC 643 : [2009] 13 SCR 124 – relied on. Surjit Singh v. Balbir Singh (1996) 3 SCC 533 : [1996] 3 SCR 70; Mansukhlal Dhanraj Jain and Ors. Etc. v. B Eknath Vithal Ogale Etc. (1995) 2 SCC 665 : [1995] 1 SCR 996; Mahesh Chand Sharma v. State of U. P and Ors. (2009) 15 SCC 519 : [2009] 13 SCR 922; C. P. Subhash v. Inspector of Police, Chennai and Ors. (2013) 11 SCC 559 : [2013] 1 SCR 545; Kishorbhai Gandubhai Pethani v. State of Gujarat and Anr. C (2014) 13 SCC 539 : [2013] 10 SCR 208; Vishnu ChandruGaonkar v. N. M.

Dessai (2018) 5 SCC 422 : [2018] 3 SCR 103; Sachida Nand Singh and Anr. v. State of Bihar and Anr. (1998) 2 SCC 493 : [1998] 1 SCR 492 – referred to. D State Wakf Board, Madras v. Abdul Azeez Sahib and Ors. AIR 1968 Mad. 79; Re V. V. L. Narasimhamurthy AIR 1955 Mad 237 – referred to. Case Law Reference [2005] 2 SCR 708 followed Para 4 E [1996] 3 SCR 70 referred to Para 7 [1971] Suppl. SCR 834 relied on Para 10 [1962] 2 Suppl. SCR 812 relied on Para 11 F [1964] 4 SCR 957 followed Para 14 [1966] 1 SCR 493 relied on Para 15 [1966] 3 SCR 552 relied on Para 16 [1967] 3 SCR 828 relied on Para 17 G AIR 1968 Mad. 79 referred to Para 20 [1995] 1 SCR 996 referred to Para 21 [2009] 13 SCR 922 referred to Para 29 [2013] 1 SCR 545 referred to Para 29 H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v.

1081 PRASAD VASSUDEV KENI [2013] 10 SCR 208 referred to Para 29 A [2018] 3 SCR 103 referred to Para 29 (2015) 15 SCC 729 relied on Para 31 [2019] 2 SCR 643 referred to Para 32 B [1998] 1 SCR 492 referred to Para 33 [1953] SCR 836 relied on Para 43 [1981] 2 SCR 695 relied on Para 44 AIR 1955 Mad 237 referred to Para 44 C [2009] 7 SCR 872 relied on Para 47 [2009] 13 SCR 1254 relied on Para 49 [2009] 13 SCR 124 relied on Para 50 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. D 546-550 of 2017. From the Judgment and Order dated 22. 11. 2013 of the High Court of Bombay at Goa in Criminal Writ Petition Nos. 65, 66, 69, 70 and 73 of 2013. Anil Kumar Mishra, E. Dais, Parijat Sinha, Ms. Reshmi Rea Sinha, E Devesh Mishra, Rudra Dutta, Yogesh Nadkarni, A. Raghunath, Ms. Ruchira Gupta, Shishir Deshpande, Advs. for the appearing parties. The Judgment of the Court was delivered by R. F. NARIMAN, J. F 1. The proceedings in this case arise out of two criminal complaints dated 11. 08.

2009 filed by the Appellants against the Respondents herein before the Court of the Sessions Judge, North Goa, under Section 340 read with Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”) in respect of offences alleged under Sections 191 and 192 of the Indian Penal Code, 1860 (“IPC”). G 2. Accused No. 1 in the aforesaid complaints is a proprietary concern of the late V. G. Quenim, based in Goa, which is engaged in the business of producing, processing and sale of iron ore. Accused Nos. 2 and 3 are his son and wife respectively, who are the co-proprietors of M/s V. G. Quenim, the aforesaid V. G. Quenim having expired on H 1082 SUPREME COURT REPORTS [2020] 10 S. C. R. A 20. 07. 2007. M/s V. G. Quenimhad shared a business relationship with the Appellants since the year 1990. However, disputes arose between the parties, as a result of which four suits, being Suit Nos. 7, 8, 14 and 21 of 2000/A,were filed by the Appellants against M/s V. G.

Quenim before the Civil Court at Bacholim. A fifth suit, being Suit No. 1/2003/A, was filed by the late V. G. Quenim against the Appellants, which was B withdrawn on 01. 10. 2007 unconditionally. The Respondents filed their Written Statements and Counter Claims in the said suits filed by the Appellants. 3. After withdrawal of the fifth suit, these criminal complaints were filed, inasmuch as the Appellants contended that in these C proceedings, the Respondent/Accused had given false evidence, and had forged debit notes and made false entries in books of accounts. By two orders dated 01. 10. 2009, the learned Additional Sessions Judge-I in North Goa at Panaji, returned the complaints, stating that these complaints could only be filed in the Court before whom such proceedings were D pending in which the alleged offences were committed. The complaints were then filed before the learned Judicial Magistrate First Class at Bicholim. 4.

After various depositions had been made by witnesses before the said Magistrate, an application dated 09. 05. 2011 was filed, in which the Appellants prayed, relying upon the Supreme Court judgment in Iqbal E Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370, that the said complaints be converted to private complaints. This was done by two orders of the Judicial Magistrate dated 13. 10. 2011, who after converting the said complaints into private complaints, issued process under Sections 191, 192 and 193 of the IPC. It is important to F note that the Appellants/complainants did not file any revision or other proceedings to challenge the issue of process under the aforesaid sections of the IPC. 5.

The Respondents, however, filed revision applications against the said orders, in which it was stated that the bar contained in Section G 195(1)(b)(i) of the CrPC, and the procedure under Section 340 CrPC being mandatory, could not be circumvented, and the complaints read as a whole would clearly show that offences under Sections 191 to 193 of the IPC alone were made out, as a result of which the drill under the aforesaid sections of the CrPC would have to be observed. In a counter-affidavit dated 08. 10. 2012 filed to the aforesaid revision applications, H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1083 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] the Appellants, for the first time, took the plea that offences under Sections A 463, 464, 465, 467, 468, 469, 471, 474, 475 and 477-A of the IPC were also made out against the Respondents, as a result of which a private complaint would be maintainable. The learned Additional Sessions Judge, Mapusa, by his judgment dated 05. 03.

2013, held that the bar under Section 195(1)(b)(i) of the CrPC was attracted, and that the provisions under B Section 340 of the CrPC, which were mandatory, had to be followed. Since this was not done, the revision petitions were allowed and the complaints quashed. Iqbal Singh Marwah (supra) was distinguished, stating that it was a judgment which concerned itself with Section 195(1)(b)(ii) and not Section 195(1)(b)(i) of the CrPC, and would, therefore, have no application in the facts of this case. C 6. Writ petitions filed by the Appellants against the aforesaid judgment proved unsuccessful, the High Court dismissing the aforesaid writ petitions by the impugned judgment dated 22. 11. 2013. 7. Shri Anil Kumar Mishra, learned Advocate appearing on behalf D of the Appellants, took us through the complaints dated 11. 08. 2009.

It was his case that debit notes had been created by the Respondents which were totally fraudulent, in order to buttress their case that certain amounts were owed by the Appellants to the Respondents. The learned counsel argued with great vehemence that this is why the fifth suit, viz. , Suit No. 1/2003/A was ultimately withdrawn on 01. 10. 2007,the E Respondents having realised that the evidence given would completely belie their false case. The learned counsel then referred to the counter-affidavit filed to the revision petition before the learned Sessions Judge in order to buttress his plea that offences under the “forgery” sections of the IPC had been made out, which would all be the subject matter of F a private complaint, and which do not have to follow the procedure set out by Section 340 CrPC. He relied very heavily upon Iqbal Singh Marwah (supra) to argue that the documents and books of accounts etc.

that were forged, were all forged before they were taken in evidence in the Court proceedings, as a result of which the judgment squarely applied, and a private complaint, therefore, would be maintainable. He G also argued that the High Court was wrong in stating that the Appellants did not file any Section 482 petition making a grievance that the complaints disclosed other offences also, and that the Magistrate ought to have issued process for the same. He cited a judgment to assail this part of the High Court judgment, stating that the High Court ought not to have H 1084 SUPREME COURT REPORTS [2020] 10 S. C. R. A stood upon ceremony, but if it had found injustice, ought to have suo moto exercised powers under Section 482 of the CrPC. He further attacked the impugned judgment, by stating that its reliance on Surjit Singh v.

Balbir Singh (1996) 3 SCC 533, a judgment that has been expressly overruled in Iqbal Singh Marwah (supra), would also show that the reasoning of the aforesaid judgment is completely faulty. He B cited a number of judgments which followed Iqbal Singh Marwah (supra), and stated that it was wrong to say that it was confined only to Section 195(1)(b)(ii), but that its reasoning would clearly apply to cases which fall within both Section 195(1)(b)(i) as well as Section 195(1)(b)(ii) of the CrPC. As an alternative argument, he went on to add that process C may have been issued stating wrong sections, which would make no difference,as at the stage of framing a charge under Section 211 of the CrPC, the correct sections could then be referred to. Even thereafter, charges as framed can always be altered under Section 216 of the CrPC.

He then went on to point out that under Section 460(e) of the CrPC, once a Magistrate issues process under Section 190(1)(a) of the CrPC, D any irregularity that may be committed in the course of the proceedings can always be condoned. According to him, therefore, the complaints were correctly registered as private complaints and ought to continue as such. 8. Shri Yogesh Nadkarni, learned counsel appearing on behalf of E the Respondents, referred to the pending suits, and to the application for conversion of the complaints, which, according to him, were correctly filed under Section 195 read with Section 340 CrPC. He argued that the High Court was correct in its conclusion that Iqbal Singh Marwah (supra) was a case which arose only under Section 195(1)(b)(ii) of the F CrPC, and that the complaints filed in the present case disclose offences which would fall within Section 195(1)(b)(i) of the CrPC.

He also vehemently argued that the debit notes, which were the sheet-anchor of the Appellants’ case, cannot be said to have been forged within the meaning of Sections 463 and 464 of the IPC, as the debit notes, even if dishonestly or fraudulently made, had to be made within the intention of G causing it to be believed that such debit notes were made by a person whom the person making it knows that it was not made, which is not the case, as the debit notes were made on the sole proprietorship’s letterhead, with the writing and signatures that were of the proprietor. He, therefore, argued that the forgery sections under the IPC do not get attracted at all to the complaints, which were correctly filed under Section 195 read H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1085 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] with Section 340 of the CrPC.

He contended that the counter-affidavit A that was relied upon by the Appellants to the Respondent’s revision applicationswas clearly an afterthought, in order to buttress a hopeless case. In any event, the complaints read as a whole, would make it clear that the entirety of the complaints were in, or in relation to, offences committed under Sections 191 and 192 of the IPC used/to be used in B judicial proceedings and, therefore, fell squarely within Section 195(1)(b)(i) of the CrPC. He also argued that after conversion into a private complaint, the Magistrate issued process only under Sections 191 to 193 of the IPC, which order remained unchallenged by the Appellants. He also cited judgments relating to the object sought to be achieved by Section 195, as well as judgments which distinguished Iqbal Singh Marwah C (supra) on that ground that it applied only to cases falling under Section 195(1)(b)(ii) and not to cases falling under Section 195(1)(b)(i) of the CrPC. 9.

Having heard the learned counsel appearing on behalf of the parties, it is necessary to set out the relevant sections of the CrPC and D the IPC. CrPC “190. Cognizance of offences by Magistrates. —(1) Subject to the provisions of this Chapter, any Magistrate of the first class, E and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence; F (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate G of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. ” “195.

Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences H 1086 SUPREME COURT REPORTS [2020] 10 S. C. R. A 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 B (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; C (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 D (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 E (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 by such officer of the Court as that Court may authorise in writing in this behalf, F or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon G its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term “Court” means a H Civil, Revenue or Criminal Court, and includes a tribunal constituted M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1087 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] by or under a Central, Provincial or State Act if declared by that A Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees B no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that— C (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue D Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. ” “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 E 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, F 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; G (d) take sufficient security for the appearance of 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 H 1088 SUPREME COURT REPORTS [2020] 10 S. C. R.

A (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 B rejected an 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 C 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 D 195. 341. Appeal.

—(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to E the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under F section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly. (2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision. ” G “343. Procedure of Magistrate taking cognizance.

—(1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report. H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1089 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] (2) Where it is brought to the notice of such Magistrate, or of any A other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided. ” B IPC “24. “Dishonestly”. —Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”. C 25. “Fraudulently”. —A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. ” “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 D 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. E 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. F 192. Fabricating false evidence.

—Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a G public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding H is said “to fabricate false evidence”. 1090 SUPREME COURT REPORTS [2020] 10 S. C. R. A 193. Punishment for false evidence.

—Whoever intentionally gives false evidence in any 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 extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates B false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1. —A trial before a Court-martial is a judicial proceeding. C 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. ” “196. Using evidence known to be false.

—Whoever corruptly D uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. ” “463. Forgery. —Whoever makes any false document or false electronic record or part of a document or electronic record, with E intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. F 464. Making a false document. —A person is said to make a false document or false electronic record— First.

—Who dishonestly or fraudulently— (a) makes, signs, seals or executes a document or part of a document; G (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any electronic signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of theelectronic signature, H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1091 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] with the intention of causing it to be believed that such document A or part of document, electronic record orelectronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.

—Who without lawful authority, dishonestly or B fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or C Thirdly. —Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he D does not know the contents of the document or electronic record or the nature of the alteration. Explanation 1. —A man’s signature of his own name may amount to forgery Explanation 2.

—The making of a false document in the name of E a fictious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Explanation 3. —For the purposes of this section, the expression F “affixing electronic signature” shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000). ” 10. Section 190 of the CrPC states that a Magistrate may take cognizance of any offence in one of three situations: (a) upon receiving G a complaint of facts which constitute such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

However, Section 195 of the CrPC states that in the offences covered by it, no Court shall take cognizance except upon the complaint in writing of a public servant, insofar as the offences H 1092 SUPREME COURT REPORTS [2020] 10 S. C. R. A mentioned in sub-clause (1)(a) are concerned, and by the complaint in writing of the “Court” as defined by sub-section (3), insofar as the offences delineated in sub-clause (1)(b) are concerned. The reason for the enactment of Section 195 of the CrPC has been stated felicitously in Patel Lalji bhai Somabhai v. State of Gujarat (1971) 2 SCC 376, as follows: B “7. The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476, seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a C revengeful desire to harass or spite their opponents.

These offences have been selected for the court’s control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offence and it is D only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed E ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint.

But such party is deprived of the general right recognized by Section 190 CrPC, of the aggrieved parties directly initiating the criminal proceedings. F The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a G completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. ” 11. This section has been construed to be mandatory, being an absolute bar to the taking of cognizance under Section 190 of the CrPC, H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1093 PRASAD VASSUDEV KENI [R. F. NARIMAN, J.

] unless the conditions of the section are met, as held by this Court in A Daulat Ram v. State of Punjab (1962) Supp. 2 SCR 812 as follows (at page 815): “The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in B every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tahsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge-sheet had satisfied the requirements of Section 195. The C words “no court shall take cognizance” have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section. ” 12.

Under Section 340 of the CrPC, the procedure in cases D mentioned in Section 195 of the CrPC is set out. The Court may make a preliminary enquiry if it thinks necessary, and then record a finding to the effect that the provisions of Section 195(1)(b) of the CrPC are attracted, as a result of which the Court itself is then to make a complaint in writing, and send it to a Magistrate of the first class having jurisdiction. Where the Court declines to make any such complaint, an appeal is E provided under Section 341 of the CrPC. The appellate power of the Court under Section 341 can also be invoked, insofar as a complaint has been made under Section 340, by the person so aggrieved. By Section 341(2), the appellate order shall be final and shall not be subject to revision. Finally, a Magistrate to whom a complaint is made under these F sections shall proceed to deal with the case as if it were instituted on a police report – vide Section 343(1). 13.

The point forcefully argued by the learned counsel on behalf of the Appellants is that his clients, being victims of forgery, ought not to be rendered remediless in respect of the acts of forgery which are G committed before they are used as evidence in a court proceeding, and that therefore, a private complaint would be maintainable in the fact circumstance mentioned in the two criminal complaints referred to hereinabove. The Court has thus to steer between two opposite poles of a spectrum – the “yin” being the protection of a person from frivolous criminal complaints, and the”yang” being the right of a victim to ventilate H 1094 SUPREME COURT REPORTS [2020] 10 S. C. R. A his grievance and have the Court try the offence of forgery by means of a private complaint.

In order to appreciate whether this case falls within the category of avoiding frivolous litigation, or whether it falls within the individual’s right to pursue a private complaint,we must needs refer to several decisions of this Court. B 14. In Babu Lal v. State of Uttar Pradesh (1964) 4 SCR 957, a 5-Judge Bench of this Court dealt with the difference between the ingredients of offences made out under Sections 192 and 193 of the IPC on the one hand, and the “forgery” sections of the IPC on the other. The Court put it thus (at pages 962-963): C “It is true that some of the ingredients of the act of fabricating false evidence which is penalised under Section 193 Indian Penal Code and of making a false document and thereby committing forgery within the meaning of Sections 463 and 464 of the Indian Penal Code are common.

A person by making a false entry in any book or record or by making any document containing a false D statement may, if the prescribed conditions of Section 463 are fulfilled, commit an offence of forgery. But the important ingredient which constitutes fabrication of false evidence within the meaning of Section 192 Indian Penal Code beside causing a circumstance to exist or making a false document — to use a compendious expression — is the intention that the circumstance so caused to E exist or the false document made may appear in evidence in a judicial proceeding, or before a public servant or before an arbitrator, and lead to the forming of an erroneous opinion touching any point material to the result of the proceeding.

The offences of forgery and of fabricating false evidence for the purpose of using F it in a judicial proceeding are therefore distinct, and within the description of fabricating false evidence for the purpose specified in Section 479-A Criminal Procedure Code, the offence of forgery is not included. In any event the offence penalised under Section 471 Indian Penal Code can never be covered by sub-section (1) of Section 479-A. Therefore for taking proceeding against a G person who is found to have used a false document dishonestly or fraudulently in any judicial proceeding, resort may only be made to Section 476 Code of Criminal Procedure. ” 15. In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493, the question arose in the context of an expert witness (i. e. the Appellant H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1095 PRASAD VASSUDEV KENI [R. F. NARIMAN, J.

] before the Supreme Court) who produced a diploma before the Sessions A Court from the Imperial College of Science and Technology in London, to the effect that he had specialised in the subject of criminology. The prosecution applied to the Sessions Judge under Section 195 of the CrPC for prosecution of Dr. Dutt under Section 193 of the IPC. This application was rejected. Two days after its rejection, the private complainant lodged B a report at a police station alleging that Dr. Dutt had committed an offence under Section 465, 466 and 471 of the IPC, stating that the diploma produced was forged, and that Dr. Dutt had used this “in the court with a bad motive”, passing it off as genuine. The question which arose before this Court was as to whether the private complaint was substantially for offences under Sections 191 to 193 or 196 of the IPC, as against the C “forgery”sections contained in the IPC from Section 463 onwards.

After setting out the two sets of sections contained in the IPC, the Court held: “The broad distinction between offences under the two groups is this. Section 465 deals with the offence of forgery by the making of a false document and Section 471 with the offences of using D forged documents dishonestly or fraudulently. Section 193 deals with the giving or fabricating of false evidence and Section 196 with corruptly using evidence known to be false. The gist of the offence in the first group is the making of a false document and the gist of the offences in the second group is the procuring of E false circumstances or the making of a document containing a false statement so that a judicial officer may form a wrong opinion in a judicial proceeding on the faith of the false evidence. Another important difference is that whereas Section 471 requires a user to be either fraudulent, dishonest or both, Section 196 is satisfied if the user is corrupt.

The Penal Code defines the expressions F fraudulently and dishonestly but not the expression corrupt. We shall now attempt to apply the two groups of offences contained in Chapter XI and Chapter XVIII, to the proved acts of Dr Dutt. We shall begin with Chapter XI. The definition of the expression “fabricating false evidence” in Section 192, already G quoted, quite clearly covers this case. If Dr Dutt fabricated the false diploma he made a document containing a false statement intending that it may appear in evidence and so appearing in evidence may cause any person who is to form an opinion upon it to entertain an erroneous opinion touching on point material to the H 1096 SUPREME COURT REPORTS [2020] 10 S. C. R. A result of a judicial proceedings. Dr Dutt, as alleged, was falsely posing as an expert and was deposing about matters which were material to the result of the trial. He had a document to support his claim should occasion arise.

He produced the document, although asked to do so, intending that the presiding Judge may form an erroneous opinion about Dr Dutt and the relevancy of his B evidence. The case was thus covered by Section 192. When Dr Dutt deposed, let us assume falsely about his training, he committed an offence under Section 193. Again, when Dr Dutt used the diploma as genuine his conduct was corrupt, whether or not it was dishonest or fraudulent. ” C (at pages 499-500) “It would thus be seen that the action of Dr Dutt was covered by Sections 192 and 196 of the Penal Code. If Dr Dutt gave false evidence in court or if he fabricated false evidence the offence under Section 193 was clearly committed. If he used fabricated D evidence an offence under Section 196 was committed by him. These offences would have required a complaint in writing of the Sessions Judge before cognizance could be taken. ” (at page 501) “We are, therefore, satisfied that Dr Dutt’s conduct does not come E within Section 471.

On the other hand, it falls within Section 196 which casts its net wider in the interest of the purity of administration of justice. It may be noted that an offence under Section 196 of the Penal Code is a far more serious offence than the offence under Sections 465/471. The former is punishable F with imprisonment upto seven years and fine while the latter is punishable with imprisonment upto two years or with fine. In this connection we may again recall the words of this Court which were put in the forefront by Mr Chari that it is not permissible for the prosecution to drop a serious charge and select one which G does not require the procedure under Section 195 of the Code of Criminal Procedure. If the offence was under Section 196 of the Indian Penal Code, a complaint in writing by the court concerned was required. Before a complaint is made the court has to consider whether it is expedient in the interests of justice to order a prosecution.

In the lesser offence no such complaint by the court H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1097 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] is necessary and it is obvious that the lesser offence was chosen A to bypass the Sessions Judge who had earlier decided that Dr Dutt should not be prosecuted for perjury. Such a device is not to be commended. In our opinion, the offence in the present case did not fall within Sections 465/471 IPC and the prosecution launched against Dr Dutt cannot be allowed to go on. ” B (at pages 503-504) 16. In Baban Singh and Anr. v. Jagdish Singh and Anr. (1966) 3 SCR 552, the question was whether the swearing of false affidavits before a Court would amount to an offence under Sections 191 or 192 of the IPC, or whether Section 199 of the IPC would be attracted, in C which case the special procedure delineated by Section 479-A of the Code of Criminal Procedure, 1898 need not be followed.

The Court held (at pages 555-556): “The matter has to be considered from three standpoints. Does the swearing of the false affidavits amount to an offence under D s. 199, Indian Penal Code or under either s. 191 or 192, Indian Penal Code? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be E capable of being used as evidence and which any court of justice or any public servant or other person, is bound or authorised by law to receive as evidence. Section 191 deals with evidence on oath and s. 192 with fabricating false evidence. If we consider this matter from the standpoint of s. 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by F oath to state the truth because an affidavit is a declaration made under oath.

The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within s. 192. It lays down inter alia that a person is said to fabricate false evidence if he makes a document containing a false statement G intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cause any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and DharichhanKuer made declarations in their affidavits which were H 1098 SUPREME COURT REPORTS [2020] 10 S. C. R. A tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of ss. 191/192 rather than s.

199 of the Indian Penal Code. They were thus prima facie guilty of an B offence of giving false evidence or of fabricating false evidence for the purpose of being used in a judicial proceeding. Section 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or criminal courts and do one of two things: (i) intentionally give false evidence C in any stage of the judicial proceeding or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence under Section 191/193 and the second to that under 192/193 of the Indian Penal Code. In respect of such offences when committed by a witness, D action under s. 479-A alone can be taken. The appellants were witnesses in the inquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against them the High Court ought to have followed the procedure under s.

479-A of the Code of Criminal Procedure. Not having done so, the action under S. 476 of the Code of Criminal Procedure was E not open because of sub-s. (6) of s. 479-A and the order under appeal cannot be allowed to stand. ” 17. In Kamla Prasad Singh v. Hari Nath Singh (1967) 3 SCR 828, the question which arose before the Court was as to whether the intentional making of a false entry in a document to be used in a judicial F proceeding would make out an offence under Section 192, or whether it would make out an offence under Section 218 of the IPC, in which case a private complaint would have been maintainable before a Magistrate. In dealing with the distinctive features of complaints filed under Sections 192 and 193 of the IPC, the Court held (at pages 829-830): G “The first question is what are the distinct features of Section 193 and Section 218 of the Indian Penal Code.

Section 193 states the punishment for giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of judicial proceeding. Section 191 defines the offence of giving false evidence and Section 192 the offence of H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1099 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] fabricating false evidence. We may ignore Section 191 because A here admittedly there is no giving of false evidence as defined in the Penal Code. The offence of fabricating false evidence comes into existence when a person causes any circumstance to exist or makes any false entry in any book or record or makes any document containing a false statement intending that such B circumstance, false entry or false statement may appear in evidence in a judicial proceeding etc. and so appearing cause an erroneous opinion be formed touching a point material to the result of such proceeding.

The offence is a general one and does not specify the person or the kind of document. It may be any person and the fabricated evidence may be in any form. Section 218 on the other C hand deals with the intentional preparation of a false record by a public servant with the object of saving or injuring any person or property. The difference between the two sections is clearly noticeable. Section 192 deals with judicial proceeding and the false evidence is intended to be used in a judicial proceeding. Section D 218 deals with public servants and there the gist is the intentional preparation of a false record with a view of saving or injuring any person or property. This need not have relation to a judicial proceeding as such. ” 18.

In holding that the alleged offence committed by one Ahlmad E would fall under Section 192 and not under Section 218 of the IPC, the Court then went on to observe (at pages 830-831): “It will appear from this that the alleged offence committed by the Ahlmad was clearly in or in relation to a proceeding in Court. In fact he made an incorrect entry about a case actually in Court F with the intention that the date of the institution of the proceeding may be taken to be November 9, 1962 although the case was alleged to be instituted after December 4, 1962. His offence (if any be proved against him) would fall within Section 192. Section 192 deals with fabrication of false evidence to be used in a judicial proceeding so as to cause an erroneous opinion to be formed on a G material point. Section 192 therefore completely covers the case against Ahlmad, and must cover the case of Hari Nath Singh the alleged abettor.

Section 218 Indian Penal Code does not apply in this case, because the record was not made with the object of saving or injuring any person or property. The offence of Section H 1100 SUPREME COURT REPORTS [2020] 10 S. C. R. A 192 of the Indian Penal Code is punishable under Section 193 Indian Penal Code and the latter section is one of the sections mentioned in Section 195(1)(b) of the Code of Criminal Procedure, the gist of which has been reproduced above. The decision of the High Court was therefore right that the Court could not take cognizance of the offence alleged against the Ahlmad and his B abettor, because the offence was fabricating of false evidence in a case which was in fact pending and the false entry was made with the object that an erroneous opinion be formed on a material point. Such a case could only be instituted by a court in which or in relation to which this offence was committed and a private C complaint was therefore incompetent. ” 19.

At this stage, it is important to understand the difference between the offences mentioned in Section 195(1)(b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC, Section D 195(1)(b)(i) of the CrPC applies. What is important is that once these sections of the IPC are attracted, the offence should be alleged to have been committed in, or in relation to, any proceeding in any Court. Thus, what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any E proceeding in any Court. 20. The words “in relation to” have been the subject matter of judicial discussion in many judgments. Suffice it to say that for the present, two such judgments need to be noticed. In State Wakf Board, Madras v. Abdul Azeez Sahib and Ors. , AIR 1968 Mad.

79, the expression F “relating to” contained in Section 57(1) of the Wakf Act, 1954 fell for consideration before the Madras High Court. The High Court held: “8. We have no doubt whatever that the learned Judge, (Kailasam, J. ), was correct in his view that even the second suit has to be interpreted as within the scope of the words employed in S. 57(1) G namely, “In every suit or proceeding relating to title to Wakf property”. There is ample judicial authority for the view that such words as “relating to” or “in relation to” are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. They are not words of restrictive content and ought not to be so H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1101 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] construed. The matter has come up for judicial determination in A more than one instance. The case in Compagnie Financiec Dae Pacifique v.

Peruvian Guano Co, is of great interest, on this particular aspect and the judgment of Brett, L. J. , expounds the interpretation of O. 31, R. 12 of the Rules of the Supreme Court, 1875, in the context of the phrase “material to any matter in question B in the action”. Brett, L. J. , observed that this could both be direct as well as indirect in consequences and according to the learned Judge the test was this (at page 63): “…a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his C own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry, which may have either of these consequences. ”” 21. Likewise, in Mansukhlal Dhanraj Jain and Ors. Etc. v. Eknath Vithal Ogale Etc.

, (1995) 2 SCC 665, the expression “Suits D and proceedings between a licensor and licensee…relating to the recovery of possession” under Section 41(1) of the Presidency Small Cause Courts Act, 1882 came up for consideration before this Court. The Court held: “14…The words ‘relating to’ are of wide import and can take in their sweep any suit in which the grievance is made that the E defendant is threatening to illegally recover possession from the plaintiff-licensee. Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant to forcibly recover such possession from the plaintiff, can clearly get covered by the wide sweep of the words “relating to recovery of possession” as employed by Section 41(1). F xxx xxxxxx 16.

It is, therefore, obvious that the phrase “relating to recovery of possession” as found in Section 41(1) of the Small Cause Courts Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of G possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possession from the licensee-plaintiff would squarely be covered by the wide sweep of the said phrase. Consequently in the light of the averments in the plaints under H 1102 SUPREME COURT REPORTS [2020] 10 S. C. R. A consideration and the prayers sought for therein, on the clear language of Section 41(1), the conclusion is inevitable that these suits could lie within the exclusive jurisdiction of Small Cause Court, Bombay and the City Civil Court would have no jurisdiction to entertain such suits. ” B 22.

Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) of the CrPC speaks of offences described in Section 463, and punishable under Sections 471, 475 or 476 of the IPC, when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. What is conspicuous by its absence in Section 195(1)(b)(ii) are the words “or in relation to”, C making it clear that if the provisions of Section 195(1)(b)(ii) are attracted, then the offence alleged to have been committed must be committed in respect of a document that is custodia legis, and not an offence that may have occurred prior to the document being introduced in court proceedings. Indeed, it is this distinction that is vital in understanding the D sheet anchor of the Appellant’s case namely, this Court’s judgment in Iqbal Singh Marwah (supra). 23.

In Iqbal Singh Marwah (supra), a 5-Judge Bench was constituted in view of a conflict between decisions of this Court as follows: “2. In view of conflict of opinion between two decisions of this E Court, each rendered by a Bench of three learned Judges in Surjit Singh v. Balbir Singh [(1996) 3 SCC 533] and Sachida Nand Singh v. State of Bihar [(1998) 2 SCC 493] regarding interpretation of Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973 (for short “CrPC”), this appeal has been placed before the present Bench. ” F 24. The Court first spoke of the broad scheme of Section 195 of the CrPC, which deals with three distinct categories of offences, and held that the category of offences contained in Section 195(1)(b)(ii) ought to be read along with the offences contained in Section 195(1)(a) and 195(1)(b)(i), which are clearly offences which directly affect either the G functioning or discharge of duties of a public servant or of courts of justice.

This was stated in paragraph 10 of the judgment as follows: “10. The scheme of the statutory provision may now be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1103 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] (b)(ii) and they relate to (1) contempt of lawful authority of public A servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is — “Of Contempts of the Lawful Authority of Public Servants”. These B are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as — “Of False Evidence and Offences Against Public Justice”.

The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before C a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the D offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression “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” occurring in clause (b)(ii) should E normally mean commission of such an offence after the document has actually been produced or given in evidence in the court.

The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in court, does not F appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court. ” G 25. The Chapter heading of Chapter XXVI of the CrPC, which contains Sections 340 and 341 was then referred to – the heading reading “Provisions as to Offences Affecting the Administration of Justice”, which according to the Court also indicated that the offences mentioned in Section 195(1)(b)(ii) are offences which directly affect the administration H 1104 SUPREME COURT REPORTS [2020] 10 S. C. R. A of justice.

After referring to various judgments, the Court then explained the difference between Section 195(1)(c) of the Code of Criminal Procedure, 1898 and Section 195(1)(b)(ii) of the CrPC, 1973 as follows: “19. As mentioned earlier, the words “by a party to any proceeding in any court” occurring in Section 195(1)(c) of the old Code have B been omitted in Section 195(1)(b)(ii) CrPC. Why these words were deleted in the corresponding provision of the Code of Criminal Procedure, 1973 will be apparent from the 41st Report of the Law Commission which said as under in para 15. 39: “15. 39. The purpose of the section is to bar private prosecutions C where the course of justice is sought to be perverted leaving to the court itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also.

Witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter D as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of Section 195. ” 20. Since the object of deletion of the words “by a party to any E proceeding in any court” occurring in Section 195(1)(c) of the old Code is to afford protection to witnesses also, the interpretation placed on the said provision in the earlier decisions would still hold good. ” 26.

Importantly, the Court then stated that Section 195 of the CrPC F is an exception to the general provision contained in Section 190 thereof, and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated under Section 195, which must be necessarily follow the drill contained in Section 340 of the CrPC (see paragraph 21). An important reason is then given by the Court, which is G that the victim of a forged document which is forged outside the court premises and before being introduced in a Court proceeding, would render the victim of such forgery remediless, in that it would otherwise be left only to the court mentioned in Section 340 of the CrPC who decides as to whether a complaint ought or ought not to be lodged in respect of such complaint. Paragraph 23 therefore states: H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1105 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] “23.

In view of the language used in Section 340 CrPC the court A 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 interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every B 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(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such C 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 D 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 E clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded. ” 27. Paragraph 25 of the judgment then refers to how the broader F interpretation that was accepted in Surjit Singh (supra) would be capable of great misuse.

This was put by the Court as follows: “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 G produced in court, is capable of great misuse. As pointed out in SachidaNand Singh [(1998) 2 SCC 493] 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 H 1106 SUPREME COURT REPORTS [2020] 10 S. C. R. A 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 would be highly B detrimental to the interest of the society at large. ” 28. The Court then held that where it is possible, interpretatively speaking, an impracticable result should be avoided (see paragraphs 26 and 27). The Court, which was dealing with a forged will that had been introduced in Court proceedings after it was forged, therefore concluded: C “33. In view of the discussion made above, we are of the opinion that SachidaNand Singh [(1998) 2 SCC 493] has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with D respect to a document after it has been produced or given in evidence in a proceeding in any court i. e. during the time when the document was in custodia legis. 34. In the present case, the Will has been produced in the court subsequently.

It is nobody’s case that any offence as enumerated E in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned F Additional Sessions Judge and the High Court is perfectly correct and calls for no interference. ” 29. Thus, Iqbal Singh Marwah (supra) is clear authority for the proposition that in cases which fall under Section 195(1)(b)(ii) of the CrPC, the document that is said to have been forged should be custodia G legis after which the forgery takes place. That this judgment has been followed in several subsequent judgments is beyond cavil – see Mahesh Chand Sharma v. State of U. P and Ors. (2009) 15 SCC 519 (at paragraphs 21-23); C. P. Subhash v.

Inspector of Police, Chennai and Ors. (2013) 11 SCC 559 (at paragraphs 12 and 13); Kishorbhai H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1107 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] Gandubhai Pethani v. State of Gujarat and Anr. (2014) 13 SCC 539 A (at paragraphs 14 and 15) and Vishnu Chandru Gaonkar v. N. M. Dessai (2018) 5 SCC 422 (at paragraphs 14 and 17). 30. However, Shri Mishra, undaunted by the fact that Iqbal Singh Marwah (supra) and its progeny are all cases relatable to Section 195(1)(b)(ii) of theCrPC, has argued that the same reasoning ought to B apply to cases falling under Section 195(1)(b)(i) of the CrPC. First and foremost, as has been pointed out hereinabove, every judgment that follows Iqbal Singh Marwah (supra) is in the context of offences mentioned in Section 195(1)(b)(ii) of the CrPC. Secondly, there is direct authority for the proposition that the ratio in Iqbal Singh Marwah (supra) C cannot be extended to cases governed by Section 195(1)(b)(i) of the CrPC.

31. Thus, in Kailash Mangal v. Ramesh Chand (2015) 15 SCC 729, this Court was confronted with the conviction of the appellant under Sections 193 and 419 of the IPC in a case initiated on a private complaint. D Iqbal Singh Marwah (supra) was put in the forefront of the argument, stating that the offence that had been committed on the facts of this case had been committed with respect to a document prior to its being custodia legis. This Court distinguished Iqbal Singh Marwah (supra) as follows: E “9. While restoring the conviction of the appellant under Section 193 IPC, the High Court has relied upon a decision of the Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah.

A Constitution Bench of this Court in Iqbal Singh Marwah case held that the protection engrafted under Section 195(1)(b)(ii) CrPC would be attracted only when F the offence enumerated in the said provisions has been committed with respect to a document after it had been produced or given in evidence in proceedings in any court i. e. during the time when the document was in custodia legis. Where the forgery was committed before the document was filed in the Court, the High Court was G held not justified in quashing the prosecution of the accused under Sections 467, 468, 471, 472 and 477-A IPC on the ground that the complaint was barred by the provisions of Section 195(1)(b)(ii) CrPC. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the provision have been committed with respect to a document after it has been produced or given in H 1108 SUPREME COURT REPORTS [2020] 10 S. C. R. A evidence in a proceeding in any court i. e.

during the time when the document was in custodia legis. 10. In the instant case, the false affidavit alleged to have been filed by the appellant was in a proceeding pending before the civil court and the offence falls under Section 193 IPC and the B proceeding ought to have been initiated on the complaint in writing by that court under Section 195(1)(b)(i) IPC. Since the offence is said to have been committed in relation to or in a proceeding in a civil court, the case of Iqbal Singh Marwah is not applicable to the instant case. ” C 32. Likewise, in a recent judgment in Narendra Kumar Srivastava v. State of Biharand Ors. (2019) 3 SCC 318, the Court was concerned with false affidavits that had been prepared/forged outside the Court. This being so, the question that arose before the Court was whether the Magistrate was justified in taking cognizance of an offence punishable under Section 193 of the IPC on the basis of a private D complaint. This Court held: “13.

It is clear from sub-section (1)(b) of Section 195 CrPC that the section deals with two separate set of offences: (i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC, when E such offence is alleged to have been committed in, or in relation to, any proceeding in any court; [Section 195(1)(b)(i)] (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 IPC, when such offence is alleged to have been committed in respect of a document F produced or given in evidence in a proceeding in any court. [Section 195(1)(b)(ii)]. 14. On the reading of these sections, it can be easily seen that the offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearly distinct.

The first category of offences refers to offences G of false evidence and offences against public justice, whereas, the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court. H M/S BANDEKAR BROTHERS PVT. LTD. & ANR v. 1109 PRASAD VASSUDEV KENI [R. F. NARIMAN, J. ] 15. Section 195 CrPC lays down a rule to be followed by the A court which is to take cognizance of an offence specified therein but contains no direction for the guidance of the court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the latter court. For that purpose, one must turn to Section 340 which requires the B court desiring to put the law in motion to prefer a complaint either suo motu or an application made to it in that behalf. xxx xxxxxx 17.

Section 340 CrPC makes it clear that a prosecution under this section can be initiated only by the sanction of the court under C whose proceedings

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