Joseph vs State of Kerala

S. Siri Jagan

The petitioner is the complainant in Crl. M.P. No. 4588/2004 before the Chief Judicial Magistrate, Kottayam. The said complaint filed by the petitioner as extracted by the petitioner himself in this Criminal R.P., reads as follows: The petitioner is accused No. 5 in S.C. No. 140 of 2004 on the file of the Additional Sessions Court Ad hoc-II (Fast Track-II), Kottayam. The offences alleged against him are under Ss. 201 and 218 read with S. 34 of I.P.C. The offences alleged against accused Nos. 1 to 4 in the above Sessions Case are under Ss. 120B, 449, 394 and 302 of I.P.C. They are also charged with the offences under Ss. 201 & 218 read with S. 34 of I.P.C. The 6th accused is also charged with offences under Ss. 201 and 218 of I.P.C. read with S. 34 of I.P.C. The accused in the private complaint was the investigating officer who laid the charge sheet in the above Sessions case. The accused falsely recorded the statement of CW-43 C.M. Pathrose under S. 161 of Criminal Procedure Code in the above Sessions case. The real statement was suppressed and a fabricated statement was produced along with the charge sheet before the Judicial First Class Magistrate''s Court-I, Kottayam. This was done with a view to cause injury to the petitioner/complainant. The above said witness is now an Assistant Commissioner of Police and he has submitted a petition to the Director General of Police and the Government of Kerala stating that the accused in his private complaint has falsely recorded his statement and produced a fabricated statement before the court along with the charge sheet. The accused has thereby committed the above offences under Ss. 167 and 193 of I.P.C.

(underlining supplied)

As is evident from the complaint, the allegation of the petitioner was that the accused, who is a Deputy Superintendent of Police, suppressed the statement recorded under S. 161 of the Criminal Procedure Code in a criminal case registered by the police and produced a fabricated statement along with the charge sheet before the Judicial First Class Magistrate Court-I, Kottayam and thereby committed offences under Ss. 167 and 193 of the Indian Penal Code. The Chief Judicial Magistrate expressed a doubt as to whether a private complaint would lie in respect of the said alleged offence in view of S. 195(b)(i) of the Criminal Procedure Code. The complainant was heard on that question. The petitioner contended that the bar under S. 195(b)(i) is applicable only to offences under S. 193 and not offences under S. 167. Relying on the decision of the Madras High Court in G. Srinivasa Ayyangar v. Ramasami Ayyangar (AIR (32) 1945 Mad. 9) the Chief Judicial Magistrate held that S. 193 cannot be segregated from S. 167 of the Indian Penal Code and therefore the bar under S. 195(b)(i) of Criminal Procedure Code equally applies to the petitioner''s complaint. In that view, the Chief Judicial Magistrate dismissed the complaint. The petitioner is challenging that order in this Criminal R.P.

The petitioner''s contention is that since the allegations against the accused were both under Ss. 167 and 193, which are separable, the bar under S. 195(b)(i) of the Criminal Procedure Code, is applicable to the offence under S. 193 alone and cannot be applied to the allegations of offence under S. 167, which can be tried by the Magistrate on the complaint of the petitioner.

The learned Public Prosecutor would support the impugned order on the basis of the decision of the Madras High Court relied on by the Chief Judicial Magistrate.

I have considered the rival contentions in detail.

I have already extracted the complaint hereinbefore as extracted by the petitioner himself in the Criminal R.P. S. 167 of the Indian Penal Code reads thus:

Public servant framing an incorrect document with intent to cause injury.--Whoever, being a public servant, and being as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 193 of the Indian Penal Code reads thus:

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 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

(underlining supplied)

Section 195(b)(i) of the Criminal Procedure Code reads thus:

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) xxx xxx xxx

(ii) xxx xxx xxx

(iii) xxx xxx xxx

(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

xxx xxx xxx

except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or some other Court to which that Court is subordinate.

xxx xxx xxx

I am of opinion that the petitioner is bound to lose on two counts. The first is that in this case, S. 167 of Indian Penal Code is not attracted at all. S. 167 is attracted only when a public servant prepares a document in a manner which he thinks or believes to be incorrect. Essentially, the petitioner''s allegation is that the accused suppressed the real statement prepared under S. 161 of the Criminal Procedure Code and produced along with the charge sheet a fabricated statement. That comes only within the purview of S. 193. Therefore, according to me, S. 167 is not attracted to the allegations raised by the petitioner in his complaint. Apart from the same, I am inclined to follow the Madras decision referred to above in this case. In the same, that Court held as follows:

.....This brings him within the scope of S. 191, Penal Code, and as the execution warrant or process arose in the course of a judicial proceeding and forms part of the record of those execution proceedings, the offence committed by the amin, comes under S. 193, Penal Code. The offence also appears to come under S. 167, Penal Code, which does not require the complaint of the Court under S. 195(b)(i), Criminal P.C., but there is ample authority in support of the proposition that a complainant cannot avoid the provisions of S. 195 of the Code, by making his complaint for a lesser offence for which a complaint by the Court is not necessary. The distinction between S. 167 and S. 193, Penal Code, seems to be that, whereas the former section relates to the incorrect preparation of a public record as such, the latter section applies when the record forms part of the records of a judicial proceeding, as it does in the present case.....

Going by that decision, if the facts alleged for constituting the offence are in the course of a judicial proceeding and forms part of the record of the proceedings, the offence would come under S. 193 and not under S. 167. I am in respectful agreement with that decision. Here, the recording of a statement under S. 161 itself is a judicial proceeding in view of Explanation 2 to S. 193 insofar as recording of a statement is part of the investigation directed by law preliminary to a proceeding before a court of justice and therefore is a stage of the judicial proceedings. Therefore, even assuming that the petitioner''s allegation is regarding preparation of 161 statement itself, what is attracted is only S. 193. In any event, that constitutes an offence under S. 193 also even if it constitutes an offence under S. 167. That being so, the bar under S. 195(b)(i) is clearly attracted in this case.

In view of my above findings, I do not find any merit in the challenge against the order of the Chief Judicial Magistrate. Accordingly, the Criminal R.P. is dismissed.