Tuesday, July 29, 2014

Genuine compromise can make ipc 498a compoundable but Can’t nix rape case even after compromise: SC | Isnt it genuinely promoting extortion ?

Can’t nix rape case even after compromise: SC

Dhananjay Mahapatra,TNN | Jul 29, 2014, 12.16 AM IST

NEW DELHI: Dowry harassment cases are personal in nature and can be quashed if the estranged couple reach a "genuine" compromise, the Supreme Court has ruled. 

A bench of Justice Ranjana Desai and N V Ramana drew a contrast between offences under Section 498A IPC and heinous crimes like rape and murder, though all three categories of offences are non-compoundable. 

It said Section 320 of the Criminal Procedure Code provided the list of offences that could be compounded after parties reached a compromise and the courts have to strictly follow that. 

Writing the judgment for the bench, Justice Desai said, "It is, therefore, not possible to permit compounding of offences under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussion on society, unlike heinous offences like murder, rape etc." 

The judgment came in a case related to a complaint under Section 498A and Section 4 of Dowry Prohibition Act by a woman against her husband and parents-in-law. Though the Madhya Pradesh high court acquitted the parents-in-law, it upheld the conviction of the husband. However, the HC reduced the sentence of the husband to six months imprisonment from two years sentence imposed by the trial court.

In the apex court, the estranged couple reached a compromise with the husband agreeing to pay Rs 2.5 lakh in addition to bearing the cost of litigation. The woman pleaded for quashing of the case against her estranged husband. The standing counsel for Madhya Pradesh opposed quashing the case. 

The bench examined whether the apex court could reduce the sentence in a case where the conviction has been upheld by the trial court and the high court. The court found that though Section 498A of IPC did not prescribe a minimum sentence, Section 4 of the Dowry Prohibition Act provided a minimum six-month sentence. 

The court was in a dilemma even after coming to the conclusion that appellate courts could reduce sentence to the period already undergone despite the minimum sentence provided for. The dilemma arose because the husband had been in jail for just seven days.

The bench rejected the state's objection to the compromise and said, "We see no reason why in this case we should not reduce the husband's sentence to the sentence already undergone by him. There can be no doubt about the genuine nature of the compromise between the husband and wife." It recorded the compromise and relieved the husband of further imprisonment.

Source-http://timesofindia.indiatimes.com/india/Cant-nix-rape-case-even-after-compromise-SC/articleshow/39186138.cms


Sunday, July 27, 2014

Govt mulls amendments to anti-dowry law to add clause for misuse of ipc 498a

Govt mulls amendments to anti-dowry law to add clause for misuse of ipc 498a

As on PTI | Jul 27, 2014, 10.26 AM IST

NEW DELHI: Keeping in view the rising number of complaints regarding the misuse of anti-dowry law, Centre is mulling to introduce penal provisions in the act that will ensure punishment or penalty to those who make false charges.

The Union ministry of women and child development is also contemplating giving more teeth to the Dowry Prohibition Act by strengthening the existing provisions and widening the definition of 'dowry'.

"Recently, a rise in the incidents of misuse of the anti-dowry law has come to the notice of the ministry. In some cases, women falsely implicate their husbands and in-laws for various other reasons.

"If the allegations turn out to be false, the case gets closed. So there are discussions going on about changing some provisions under which the misuse of the act may invite punishment or penalty," an official in the ministry said.

Earlier this month, the Supreme Court had directed the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 of Criminal Procedure Code".

While giving the direction, the apex court had expressed concern over the misuse of the anti-dowry law by "disgruntled" wives against her husband and in-laws and noted that the act was being increasingly used to harass in-laws.

According to ministry officials, the amendments may include widening the definition of 'dowry' by changing the words 'in connection with marriage' to 'given before the marriage, at the time of marriage and at any time after the marriage'.

 The officials said that there was also "a proposal to link certain provisions of the Domestic Violence Act to the Dowry Prohibition Act to provide quick relief".

Notifying the list of gifts exchanged during the wedding may also be made a mandatory and failure to do so could invite heavy penalties including a three-year jail term not only to the bride and the groom but also to their parents.

"Notification of the gifts during the wedding will help in checking any claim from being made later that they were part of dowry," the officials said.

In addition to this, a new clause may be incorporated which will provide an aggrieved woman the opportunity to file her case either at the place where the offence was committed or where she permanently or temporarily resides, they said.

The National Commission for Women (NCW) had also proposed recommendations to amend the Dowry Prohibition Act in 2009.

Source-http://timesofindia.indiatimes.com/india/Govt-mulls-amendments-to-anti-dowry-law/articleshow/39095407.cms


Thursday, July 3, 2014

Anti-dowry law misused, no automatic arrest in such cases, Police officers to be punished for Non Adherence to laid guidelines:Supreme Court

Anti-dowry law misused, no automatic arrest in 498a, Guidelines Laid for Police and magistrates, Police officers to be punished for Non Adherence :Supreme Court

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT
VERSUS
STATE OF BIHAR & ANR.  .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine. Petitioner happens to be the husband of respondent no.2 (Name of wife). The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition. 

Leave granted.

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an airconditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to nonfulfilment of the demand of dowry.

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics”  published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177 th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is
relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –

(a)x x x   x  x x

(b)against whom a reasonable complaint has been made, or credible information 
has been received, or a reasonable 

suspicion exists that he has committed a 

cognizable offence punishable with 

imprisonment for a term which may be less 
than seven years or which may extend to 
seven years whether with or without fine, 
if the following conditions are

satisfied, namely :-(i) x x x x x

(ii) the police officer is satisfied 
that such arrest is necessary –
(a) to prevent such person from  
committing any further offence; or
(b) for proper investigation of the 
offence; or
(c) to prevent such person from causing 
the evidence of the offence to 

disappear or tampering with such 

evidence in any manner; or 
(d) to prevent such person from making 
any inducement, threat or promise
to any person acquainted with the 
facts of the case so as to dissuade 

him from disclosing such facts to 
the Court or to the police officer;
or
(e) as unless such person is arrested, 
his presence in the Court whenever 

required cannot be ensured, 
and the police officer shall record while 

making such arrest, his reasons in writing:


Provided that a police officer shall, in 
all cases where the arrest of a person is 

not required under the provisions of this 

sub-section, record the reasons in writing 

for not making the arrest.

X  x x  x  x  x

From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.

These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to
address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial
scrutiny.

Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be  vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:

“41A. Notice of appearance before police officer.-
(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of
sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect
of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject
to the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued. 

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute. 

In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid. 

………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
21

Thursday, January 23, 2014

Punish cops who file false charges: SC

                                                           

Punish cops who file false charges: SC

    
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  193[1]  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 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  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 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.[2]

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 227[3] of the Constitution of  India  and  Section  10(1)
and 15(1) of Cr.P.C[4]. 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.[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 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[6]. 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.

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 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]. 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  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.
-----------------------
[1]    Section 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 extended 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 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.
[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 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 Magi?
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SOURCE - http://judis.nic.in/supremecourt/imgst.aspx?filename=41160