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