Santosh Tripathi And 2 Others vs State Of U.P. And 2 Others
2022 Latest Caselaw 10904 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 7414 of 2022
 

 
Petitioner :- Santosh Tripathi And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Raj Kumar Khanna,Ajay Kumar Singh,Amber Khanna
 
Counsel for Respondent :- G.A.,Dr. C.P. Upadhyay,Rajeshver Mishra,Vinod Kumar Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Rajendra Kumar-IV,J.

(Per Hon'ble Ashwani Kumar Mishra, J.)

1. This writ petition seeks to assail the first information report, dated 27.5.2022, registered as Case Crime No. 172 of 2022 (contained in annexure No. 1 to the writ petition), under Sections 419, 420, 467, 468, 471 IPC, Police Station Sarai Inayat, District Prayagraj, on the ground that the FIR contains false accusations and that cognizance in the matter can only be taken only upon a complaint filed by the concerned court, by virtue of Section 195 Cr.P.C., and in its absence the lodging of FIR is an abuse of the process of law.

2. In substance, the allegation in the impugned FIR is that a previous FIR, being Case Crime No. 553 of 2020, under Sections 147, 148, 323, 504, 506, 120-B, 452 and 308 IPC, was lodged by the petitioners against the informant of the present case alleging commissioning of various offences, including an offence under Section 308 IPC. It is then alleged that in order to substantiate offence under Section 308 IPC a document in the form of a medical report has been fabricated by the petitioners during the course of investigation in Case Crime No.553 of 2020, suggesting a fracture on the head of the informant/victim, which has been later found in an inquiry to be a manipulated document. The medical report, which is alleged to be fabricated, is a C.T. Scan report purportedly issued by the Department of Radiology, Moti Lal Nehru Medical College, Prayagraj. This C.T. Scan report is at page 31 of the short counter affidavit filed by the State. This report contains a handwritten note that "there is fracture of frontal bone in midline extending to involve ethmoidal lamellae (B/L) with resultant frontal and ethmoidal hemosinus cauminutted fracture of B/L nasal bones & (L) zygomatu process & ant. wall of (L) masill antr". This report is said to have been issued by Dr. M.C. Pant, who has opined that the handwritten part of the C.T. Scan report is not a part of the report actually issued by him. It has also been opined by the doctor that only non-medico reports are issued by his department and the "M.L.C." mentioned in the C.T. Scan report suggesting fracture is actually never issued by his department. It is also opined in the enquiry that there was actually no fracture caused and the handwritten part of the report is a fraudulent interpolation.

3. Lodgement of the FIR against the petitioners is challenged on the ground that no interpolation is made in the C.T. Scan report by the petitioners, as the C.T. Scan report was obtained by the Investigating Officer from the hospital concerned and the petitioners cannot be made liable for it. It is also urged that lodgement of the impugned FIR is impermissible, as the same is hit by section 195 Cr.P.C. Such contention was noticed by us vide our order dated 08.07.2022, which reads as follows:-

"The allegations made in the impugned first information report are to the effect that for the purposes of pressing FIR, registered as Case Crime No. 172 of 2022, under Sections 419, 420, 467, 468 and 471 IPC, Police Station Sarai Inayat, District Prayagraj, petitioners have fabricated the C.T. report under the signatures of the head of the department of Radiology.

Learned counsel for the petitioners states that such a report has not been fabricated by the petitioners inasmuch as this report was submitted by the investigating officer and not by the petitioners. It is secondly urged that the report since has been filed before the concerned Magistrate during the course of proceedings pending before it, as such the prosecution can be launched only by the Court and not by the private person.

The above contentions are disputed on behalf of the informant on the ground that the C.T. report, fabricated by the petitioners, is from S.R.N. Hospital, Prayagraj and supports the claim of petitioners as such the lodgment of the FIR is valid. It is also stated that merely because such a report was also made part of the proceedings before the Magistrate, it would not mean that the allegations with regard to fabrication of documents, need not be examined in a private complaint.

Before proceeding to examine rival contentions advanced on behalf of the parties, in the opinion of the Court, it would be appropriate to call upon the learned A.G.A. to obtain instructions from the S.R.N. Hospital, Prayagraj with regard to genuineness or otherwise of the document annexed as Annexure-4 to the writ petition.

Put up as fresh, once again, on 15.7.2022.

Copy of this order may be given to the learned A.G.A. by the registry, within 24 hours free of costs for necessary communication and compliance."

4. It is thereafter that affidavits are filed by the State and also by the private-respondent contending that the handwritten part in the C.T. Scan report is fabricated.

5. When the matter was taken up for hearing on 8.8.2022, Dr. Mukesh Chandra Pant, Head of Department Radiodiagnosis, has appeared before us and has categorically stated that hand written part in the C.T. Scan report occurring at page 31 of the short counter affidavit of the State is manipulated. He also states that the report does not contain his signatures. He further states that in fact the correct report issued by his Department is at page 32, which does not contain any handwritten note and as per it the victim had not suffered any skull fracture.

6. From the above, it is prima facie shown that a manipulated document was brought into effect to substantiate the commissioning of offence under Section 308 IPC, during the course of investigation of Case Crime No.553 of 2020.

7. The question as to whether the fabricated C.T. Scan report has been procured by the petitioners or it was obtained by the Investigating Officer is an aspect which is required to be examined during the course of investigation. On such factual issues, we are, therefore, not required to express any opinion. This part of the controversy, therefore, is left open to be resolved at the appropriate stage.

8. The legal contention, which is pressed on behalf of the petitioners, is that the alleged fabricated C.T. Scan report since forms part of the investigation conducted in the previous FIR in which a report under Section 173(2) Cr.P.C. has also been submitted before the Magistrate and is, therefore, a part of the court record, as such, cognizance in the matter can only be taken upon a complaint filed by the court and not otherwise. In this context, learned counsel for the petitioners has placed reliance upon section 195 (1)(b)(ii) of the Code of Criminal Procedure as also section 193 of the Indian Penal Code to submit that statutory investigation under section 157 of the Code of Criminal Procedure since is an investigation by law, preliminary to a proceeding before a Court of Justice, as such any fabricated material allegedly presented during the course of investigation shall have to be treated to be a document forming part of judicial proceedings. Reliance is also placed upon Explanation-II of Section 193 of the Indian Penal Code for such purposes.

9. Learned counsel for the informant, on the other hand, contends that the chargesheet submitted pursuant to the investigation in the previous FIR is in section(s) other than section 308 IPC, and therefore, the document fraudulently prepared at the instance of the petitioners would not attract the embargo of section 195 of Code of Criminal Procedure as it does not form part of judicial proceedings. The short question which thus arises for consideration in the facts of the case is as to whether cognizance in respect of a fabricated document (C.T. Scan report), collected during the course of investigation, can be taken upon a report made under Section 154 Cr.P.C. or would require filing of a complaint by the Court by virtue of section 195 of the Code of Criminal Procedure?

10. Heard Sri R.K. Khanna, learned counsel for the petitioners, Dr. C.P. Upadhyay, learned counsel for the informant and Sri Arunendra Singh, learned AGA for the State.

11. Sri Raj Kumar Khanna, learned counsel for the petitioners submits that the alleged fraudulent document since is a part of the court record, therefore, cognizance of any offence in that regard can be taken only on a complaint made by the court and that lodging of FIR by a private person is not countenanced in law.

12. In order to appreciate the above contention advanced it would be necessary to refer to Section 193 of the Indian Penal Code, relied upon by Sri Khanna, which reads as under:-

"193. Punishment for false evidence--Whoever intentionally gives false evidence in any stage 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 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; 2[***] is a judicial proceeding.

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.

Illustration

A, in an enquiry before a Magistrate for the purpose of ascer­taining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

Explanation 3.--An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that inves­tigation may not take place before a Court of Justice.

Illustration

A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence."

13. The argument with regard to specific bar in taking of cognizance proceeds on Section 195 of the Code of Criminal Procedure, relevant portion whereof reads as under:-

"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-

(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

(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;

(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

(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

(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 of some other Court to which that Court is subordinate."

14. Section 195 (b)(ii), which is referred to and relied upon by the counsel for the parties has already been a subject matter of consideration by a Constitution Bench of Supreme Court in Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, (2005) 4 SCC 370. The Supreme Court has elaborately considered the statute to observe as under in paras 10 and 11 of the report:-

"10. The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr.P.C. deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public 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 of the IPC and the heading of the Chapter is - "Of Contempts Of The Lawful Authority Of Public Servants". These 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 of 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 a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct co-relation 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 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 a Court" occurring in clause (b)(ii) should 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 appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 Cr.P.C. 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.

11. Section 195(1) mandates a complaint in writing of the Court for taking cognizance of the offences enumerated in clauses (b) (i) and (b)(ii) thereof. Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is - "Provisions As To Offences Affecting The Administration Of Justice". Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the Section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the Sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the Sections which follow them than might be afforded by a mere preamble.(See Craies on Statute Law, 7th Ed. Pages 207, 209). The fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence in Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice."

(emphasis supplied by us)

15. After referring to a previous Full Bench judgment of this Court in Emperor Vs. Kushal Pal Singh, AIR 1931 All 443, as considered in Raghunath Vs. State of U.P., (1973) 1 SCC 564, the Supreme Court in Iqbal Singh Marwah (supra) proceeded to hold as under in paras 25 to 34:-

"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.

26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:

"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong."

27. The learned author has referred to Sheffield City Council v. Yorkshire Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :

"Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. '... the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."

28. In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2 All ER 91, while interpreting a provision in the Finance Act, 1972, Lord Denning observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause (b)(ii).

29. Dr. Singhvi has also urged that since we are dealing with a penal provision it should be strictly construed and in support of his proposition he has placed reliance upon a Constitution Bench decision in Tolaram Relumal vs. State of Bombay, 1955(1) SCR 158, wherein it was held that it is well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty and it is not competent for the Court to stretch out the meaning of expression used by the legislature in order to carry out the intention of the legislature. The contention is that since Section 195(1)(b)(ii) affords protection from private prosecution, it should not be given a restrictive interpretation to curtail its scope. We are unable to accept such broad proposition as has been sought to be urged. In Craies on Statute Law (1971 Edn., Chapter 21), the principle regarding penal provisions has been stated as under :

"But penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptations would comprehend. ... ''... But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."

30. In Lalita Jalan vs. Bombay Gas Co. 2003 (6) SCC 107 this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya vs. State of Maharasthra AIR 1976 SC 1929, Kisan Trimbak Kothula vs. State of Maharashtra AIR 1977 SC 435, Superintendent and Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity AIR 1979 SC 1029 and State of Maharashtra vs. Natwarlal Damodardas Soni AIR 1980 SC 593 held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view.

31. That apart, the section which we are required to interpret is not a penal provision but is part of a procedural law, namely, Code of Criminal Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by Court. A penal statute is one upon which an action for penalties can be brought by a public officer or by a person aggrieved and a penal act in its wider sense includes every statute creating an offence against the State, whatever is the character of the penalty for the offence. The principle that a penal statute should be strictly construed, as projected by the learned counsel for the appellants can, therefore, have no application here.

32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. State of Madras AIR 1954 SC 397 give a complete answer to the problem posed :

"15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with 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 in Section 195(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) Cr.P.C. 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 Additional Sessions Judge and the High Court is perfectly correct and calls for no interference. "

16. The Constitution Bench in Iqbal Singh Marwah (supra) has clearly restricted the ambit and scope of Section 195(1)(b)(ii) Cr.P.C. to the offences committed in court which directly affects the administration of justice. Any offence committed at a time prior to its production or giving in evidence in court has been held not to be an offence affecting the administration of justice.

17. It is apparent that bar of section 195 (1)(b)(ii) Cr.P.C. would be attracted only when the offence enumerated in the said provision have been committed with 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.

18. The explanation 2 to Section 193 IPC would not be of any help in understanding the true scope of Section 195(1)(b)(ii) Cr.P.C., inasmuch as, the requirement of making complaint by the court is clearly circumscribed in the code, as interpreted in Iqbal Singh Marwah (supra), and its rigours cannot be relaxed by virtue of second explanation to Section 193 IPC.

19. It is not the case of the parties that manipulation in the report is made after it was produced or given in evidence in a proceeding in any court and, therefore, the bar contained in section 195 Cr.P.C. would not be attracted.

20. The argument of Sri Khanna that by virtue of explanation 2 to Section 193 IPC the bar of section 195 Cr.P.C. would be attracted as the investigation pursuant to the previous FIR would amount to an investigation directed by law by virtue of section 157 Cr.P.C. and would thus render it a part of judicial proceeding, though that investigation may not take place before a court of justice clearly runs contrary to the legislative intent behind introduction of section 195(1)(b)(ii) Cr.P.C., as explained in Iqbal Singh Marwah (supra) and thus cannot be accepted. The explanation 2 cannot be stretched in the manner suggested by the counsel for the petitioners so as to render the provision of section 195(1)(b)(ii) Cr.P.C. go contrary to the object behind the statute in light of the discussions held in Iqbal Singh Marwah (supra).

21. Challenge laid to the impugned first information report on the ground urged in this petition, therefore, fails. Writ petition is, accordingly, dismissed.

22. Dismissal of this petition, however, will not preclude the petitioners from seeking appropriate protection under the Code of Criminal Procedure, which shall be dealt with on its own merits and in accordance with law.

Order Date :- 23.8.2022

Anil

(Rajendra Kumar-IV, J.) (Ashwani Kumar Mishra, J.)