Section 190 of the Code of Criminal Procedure (CrPC) 1973 relates to the cognisance of offences by magistrates. Under said section, magistrates (as specified therein) may take cognisance of offences:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Conditions for making complaints
It is trite law(1) that a magistrate "takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed". Notably, Section 190 of the CrPC 1973 permits anyone to approach a magistrate with a complaint and does not prescribe any requirements which the complainant must fulfil in order to do so. However, Sections 195 to 199 of the CrPC 1973(2) act as exceptions to the general power of the courts under Section 190 of the CrPC 1973 by imposing eligibility conditions on complainants which may take recourse of said provisions. As enunciated by the Supreme Court:"Section 195 CrPC 1973 is a sort of exception to this general provision and creates an embargo upon the power of the court to take cognizance of certain types of offences enumerated therein."(3)
Significantly, under Section 195 of the CrPC 1973, where the offence(4) relates to contempt of public servants' lawful authority, as specified under Section 195(1)(a) of the CrPC 1973, no court can take cognisance of such an offence "except on the compliant in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate". As a distinction, cognisance of an offence directed against public justice(5) or relating to documents given in evidence(6) in a court proceeding is permissible only upon receipt of "a complaint in writing of that Court or by such officer of Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate".
The aim of Section 195(1)(a)(i), as articulated by the Supreme Court in C Muniappan v State of Tamil Nadu,(7) is that an individual:
should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions.
Similarly, according to the Supreme Court in Patel Laljibhai Somabhai v State of Gujarat,(8) the purpose of Sections 195(1)(b) and (c) of the CrPC 1898(9) is to deter private parties which consider themselves to have been aggrieved by the offences mentioned in said sections(10) from initiating criminal prosecutions on frivolous, vexatious or insufficient grounds or to seek revenge or harass or spite their opponents. As per the Supreme Court:
[t]hese offences have been selected for the court's control because of their direct impact on the judicial process… As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint.
Appositely, the offences set out in Section 195(1)(a) of the CrPC 1973 pose little difficulty in their identification and consequent procedural compliance. However, there seems to be some overlap in the features of the offences specified under Sections 195(1)(b)(i) and (ii) of the CrPC 1973. In this regard, the Supreme Court in Babu Lal v State of UP(11) – while appreciating the commonality of certain features of the offences under Sections 192 and 193 of the Penal Code 1860 with the offence of making a false document and thereby commissioning 'forgery' within the meaning of Sections 463 and 464 of the Penal Code – noted, among other things, that:
the important ingredient which constitutes fabrication of false evidence within the meaning of Section 192 Indian penal Code beside causing a circumstance to exist or making a false document-to use a compendious expression-is the intention that the circumstance so caused to exist or the false document made may appear in evidence in a judicial proceeding, or before a public servant or before an arbitrator, and lead to the forming of an erroneous opinion touching any point material to the result of the proceeding. The offences of forgery and of fabricating false evidence for the purpose of using it in a judicial proceeding are therefore distinct.
Therefore, the gist of the offences in the former cases is clearly(12) the procurement of false circumstances or the making of documents which contain a false statement so that a judicial officer may form a wrong opinion (usually favouring the accused) in a judicial proceeding(13) on the basis of the false evidence. Conversely, the gist of the offence in the latter case (forgery) is solely the making of fmalse documents.
Prohibitions against private complaints
Therefore, when considering the abovementioned differences, the distinction between the facts and circumstances constituting the offences of forgery and the fabrication of documents (on the one hand) and the making or using of false documents as evidence in judicial proceedings (on the other hand) may be clearly appreciated. However, Section 195(1)(b)(ii) of the CrPC 1973 provides for a complete embargo against the initiation of private complaints where the offences described in Section 463 of the Penal Code – or punishable under Sections 471, 475 or 476 of the Penal Code – are "alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court". Therefore, a contingency may arise where a forged document which is produced before a judicial proceeding is eventually produced as evidence before a court to support a scrupulous party's claims. In such circumstances, confusion may arise as to the applicability of the prohibitions provided under Section 195 of the CrPC 1973. Notably, the Supreme Court in Iqbal Singh Marwah v Meenakshi Marwah,(14) while dealing with the situation of a like-kind exchange, held that the provisions under Section 195(1)(b)(ii) of the CrPC 1973 apply only when the offences enumerated therein "have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court, that is, during the time when the document was in custodia legis". In fact, after duly appreciating the scheme of the provisions of Section 195 of the CrPC 1973, the court noted that 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 any 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 CrPC. 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.
Therefore, in the abovementioned circumstances, the Supreme Court(15) elucidated that there is no prohibition on the initiation or filing of a private compliant for the offence of forgery or the creation of forged documents before their introduction or placing on record in a court proceeding. This clarification by the Supreme Court aligns with the object of Section 195 of the CrPC 1973, which is to prevent misuse of said provision by dishonest litigants and protect victims' right to seek redressal of their grievances. In an earlier decision,(16) the Supreme Court, while dealing with said difference, observed that:
it is difficult to interpret Section 195(1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue unsavoury consequences. For instance, if rank forgery of a valuable document is detected and the forgerer is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long-drawn litigation which was either instituted by himself or somebody else who can be influenced by him and thereby pre-empt the prosecution for the entire long period of pendency of that litigation.
Recently, in Bandekar Brothers Pvt Ltd v Prasad Vassudev Keni,(17) the Supreme Court was faced with an issue regarding the applicability of the principles of Iqbal Singh Marwah to the offences specified in Section 195(1)(b)(i) of the CrPC 1973. In this context, the court noted the use of the words "in relation to any proceedings" in Section 195(1)(b)(i) of the CrPC 1973 and the lack thereof in Section 195(1)(b)(ii) of the CrPC 1973 to affirm that the offences specified in said provisions are distinct and work in separate spheres. Accordingly, while considering several precedents,(18) the court concluded that:
when Section 195(1)(b)(i) of the CrPC is attracted, the ratio of Iqbal Singh Marwah (supra), which approved Sachida Nand Singh v. State of Bihar (1998) 2 SCC 493, is not attracted, and that therefore, if false evidence is created outside the Court premises attracting Sections 191/192 of the IPC, the aforesaid ratio would not apply so as to validate a private complaint filed for offences made out under these sections.
However, in a subsequent decision,(19) the Supreme Court further clarified that:
where a person fabricates false evidence for the purpose of misleading the investigating officer, this may not have any direct nexus with the subsequent court proceedings…though the offence is one which affects the administration of justice, it is the investigating agency, and not the Court, which is the aggrieved party in such circumstance.
The court rendered this observation when faced with the issue of:
[w]hether offence committed under Section 193, IPC during the stage of investigation, prior to commencement of proceedings before the Trial Court, by a person who is not yet party to proceedings before the Trial Court, is an offence committed "in relation to" such proceedings for the purpose of the bar under Section 195(1)(b)(i), CrPC?
In this context, the court further noted that similar to a private party which has been a victim of forgery committed outside the precincts of the court, an investigative agency should not be left remediless against parties which produce false evidence for the purpose of interfering with the investigation process. Accordingly, the court concluded that:
Section 195(1)(b)(i), CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193 IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i), CrPC.
Although Section 195(1)(b) of the CrPC 1973 bars the courts from taking cognisance of offences directed against the administration of justice for the purpose of preventing baseless or vindictive prosecutions by private litigants, parties or third parties, the courts must be cognisant of the fact that under the garb of such restrictions, cases which fall outside their purview are not annulled outright. There seems to be a clear distinction between the cases which may or may not fall within the restrictions imposed under Section 195 of the CrPC 1973. Therefore, it is incumbent on the courts to delineate between such cases based on a consideration of the facts and law specific to each case. It is only then that the courts can steer between the opposite ends of a spectrum:
the "yin" being the protection of a person from frivolous criminal complaints, and the "yang" being the right of a victim to ventilate his grievance and have the Court try the offence of forgery by means of a private complaint.(20)
Endnotes
(1) Sarah Mathew v Institute of Cardio Vascular Diseases (2014) 2 SCC 62.
(2) AR Antulay v Ramdas Sriniwas Nayak (1984) 2 SCC 500:
While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC.
(3) Iqbal Singh Marwah v Meenakshi Marwah (2005) 4 SCC 370.
(4) Offences punishable under Sections 172 to 188 (both inclusive) of the Penal Code.
(5) Any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) or 228 of the Penal Code, when such offence is alleged to have been committed in or in relation to any proceeding in any court (refer to Section 195(1)(b)(i) of the CrPC 1973).
(6) Any offence described in Section 463 or punishable under Sections 471, 475 or 476 of the Penal 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 (refer to Section 195(1)(b)(ii) of the CrPC 1973).
(9) Sections 195(1)(b) and 195(1)(c) of the CrPC 1898 correspond with Sections 195(1)(b)(i) and (ii), respectively, of the CrPC 1973.
(10) "[O]ffences under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court" (Section 195(1)(b) of the CrPC 1898 (pari materia with Section 195(1)(b)(i) of the CrPC 1973)) and "offence described in Section 463 or punishable under Sections 471, 475 and 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding" (Section 195(1)(c) of the CrPC 1898 (pari materia with Section 195(1)(b)(ii) CrPC of the 1973)).
(12) Refer to S Dutt (Dr) v State of UP, (1966) 1 SCR 493: AIR 1966 SC 523.
(13) Refer to Explanation 3 of Section 193 of the Penal Code, which provides that "[a]n 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".
(16) Sachida Nand Singh v State of Bihar (1998) 2 SCC 493 (view also affirmed in Iqbal Singh Marwah).
(17) AIR 2020 SC 4247; 2020 SCCOnline SC 707.
(18) Kailash Mangal v Ramesh Chand (2015) 15 SCC 729 and Narendra Kumar Srivastava v State of Bihar (2019) 3 SCC 318.
