Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 Nagai. (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 Nagai was not pregnant. (4) Still the respondent chose to assert in the charge-sheet that Nagai 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 H basic facts and the legal position. PERUMAL v. JANAK! [J. CHELAMESWAR, J.]
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 does not 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 1. Section 193. Punishment for false evidence.-Whoever intentionally gives false evidence in any stage of a judicial proceedings, 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 extended to seven years, and shall also be liable to fine, c and whoever intentionally gives or fabricates fale evidence in any other G case, shall be punished with imprisonment of either description for a term which may extended 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. A 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 B 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 C "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 D 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 the person instituting or causing the institution of the criminal proceedings.
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 F 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 PERUMAL v. JANAKI [J. CHELAMESWAR, J.] 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.2 2. Section 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 in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice 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, 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; (d) take sufficient security for the appearance for 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 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 B 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 C 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. E (hereinafter referred to as 'the appellate court') In our view, such (e) bind over any person to appear and give evidence befor 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 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.- G (a) where the Court making the complaint is a High Court, by 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 1 the Court as the Court may authorise in writing in this behalf. 4.
In this section, "Court" has the same meaning as in section 195." PERUMAL v. JANAKI [J. CHELAMESWAR, J.] 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.C. Article 2274 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 c superior courts in the context of taking cognizance of various 3. 227. Power of superintendence over all courts by the High Court-(1) Every . High Court shall have superintendence over all courts and tribunals throughout the territories iii relation to which it exercise jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High D Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the pratice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by E the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleader practicing therein; Provided that any rules made, form prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any F law for the times being in forces, and shall require the previous approval of the Governor. (4) Nothing in this articles shall .be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 4. 10. Subordinate of Assistant Sessions Judges-(1) All Assistant Session G Judges shall be subrodinate to the Sessions Judge in whose Court they exercise jurisdiction. 15. Subordination of Judicial Magistrates-(1) Every Chief Judicial Magistrate shall be subordinate to the. Session Judge and every other Judicial Magistrate shal, subject to the general control of the Session Judge, be subordinate to the Chief Judicial Magistrate. A offences mentioned in Section ,195(1 ). Such offences are relatable to civil, criminal and re~nue courts etc.5 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 B courts have appellate jurisdiction while certain courts only have otiginal 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 c 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 D 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 E 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 F 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 G 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 5: 195 (3)-ln clause (b) of sub-section (1), the term 'Court' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by a or under a Central, Provinical or State Act, if declared by that Act to be a Court for the purposes of this section. PERUMAL v. JANAK! [J. CHELAMESWAR, J.] 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 discarded6• The power of superintendence like any other 6. 23. In view of the language used in Section 340 Cr.P.C. the Court is not C bound to make a complaint regarding commission of an offence referred to in Section 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 interest$ 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 administrative injury to a person in the sense that it may deprive him of a very valuable property 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 cricumstances, 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 doucmentis 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 though someone set up by him and simply file the document. in the said proceeding. He would thus be protected from prosecution, either at it instance of a private party or the police until the Court, where the doucment has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due. to which the acutal trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of soceity at large. A 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.
28. 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 C 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 a different context "there is no rule of law that common sense should be put in cold storage"7• D 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.
29. The appeal is, therefore, allowed. The matter is E 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. D.G. Appeal allowed. 7. Para 63 of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerafa & Ors., 1985 (Supp.) SCC 144.