1. Private complaint filed under Section 193 IPC alleging false evidence in a judicial proceeding — Magistrate took cognizance — High Court set aside the order. (Para 2 , 5 , 6 )
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2019 Supreme(SC) 110
SUPREME COURT OF INDIA
A.K. SIKRI, S. ABDUL NAZEER, JJ.
SH. NARENDRA KUMAR SRIVASTAVA – APPELLANT
VERSUS
THE STATE OF BIHAR & ORS. – RESPONDENTS
CRIMINAL APPEAL NO. 211 OF 2019
Decided On : 04-02-2019
IMPORTANT POINT
Magistrate cannot take cognizance of offence u/s 193 on basis of a private complaint.
Headnote:Indian Penal Code, 1860 – Section 193 r/w Section 195(1)(b) and section 340, Code of Criminal Procedure, 1973 – Section 195 lays down a rule to be followed by the court taking cognizance of an offence specified therein but contains no direction for the guidance of the court – Under section 340 a prosecution can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195(1)(b) has allegedly been committed deliberately and consciously – Private complaints alleging commission of offence u/s 193 absolutely barred – Procedure prescribed u/s 195 CrPC mandatory – Held, Magistrate could not have taken cognizance of offence u/s 193 on basis of a private complaint. (Para 14, 16, 17, 19)
(2000) 1 SCC 278; (1971) 1 SCC 774; (1973) 2 SCC 406 – Relied upon
(1998) 2 SCC 493 – Distinguished
Facts of the case:
ACJM took cognizance of an offence punishable under Section 193 IPC against the respondents on the basis of a private complaint filed by the appellant.
High Court has allowed the revision petition filed by the respondent Nos. 2 to 4 and set aside the order taking cognizance.
Finding of the Court:
Magistrate could not have taken cognizance of offence u/s 193 on basis of a private complaint.
Result: Appeal disposed of.
Legal Category Hierarchy
Table of Contents
2. Whether prior sanction is mandatory for a private complaint under Section 193 IPC or if Section 195 CrPC absolutely bars such private prosecutions. (Para 7 , 8 )
3. Section 195(1)(b)(i) CrPC mandates that cognizance of offences under Section 193 IPC in judicial proceedings requires a written complaint from the concerned court. (Para 12 , 13 , 14 , 15 , 16 , 19 , 20 )
4. Private complaints are absolutely barred for offences under Section 193 IPC committed in judicial proceedings; cognizance can only be taken upon a court's written complaint. (Para 19 , 23 )
5. Appeal dismissed — High Court order setting aside the Magistrate's cognizance upheld — costs imposed by High Court set aside. (Para 23 , 24 )
6. Can a private complaint be filed for an offence under Section 193 IPC committed in a judicial proceeding?
No. Section 195(1)(b)(i) of the CrPC absolutely bars private complaints for offences under Section 193 IPC when committed in or in relation to any proceeding in any Court. Cognizance can only be taken on a written complaint from the Court or an authorized officer. (Para 8 , 11 , 12 , 19 )
7. What is the procedure for initiating prosecution for offences referred to in Section 195(1)(b) CrPC?
The procedure is governed by Section 340 CrPC, where the court, finding it expedient in the interests of justice, conducts a preliminary inquiry, records a finding, and makes a written complaint to a Magistrate of the first class. (Para 14 , 15 , 16 )
8. When should a court sanction prosecution for perjury?
Prosecution for perjury should be sanctioned only when the falsehood is deliberate and conscious, conviction is reasonably probable, and it is expedient in the interests of justice to punish the delinquent, rather than to satisfy personal revenge. (Para 17 , 18 , 19 )
9. Does the bar under Section 195(1)(b)(ii) CrPC apply to documents forged before being produced in court?
No. The bar under Section 195(1)(b)(ii) does not apply if the forgery was committed before the document was produced in court; in such cases, prosecution can be launched by any person. (Para 21 )
JUDGMENT
S.ABDUL NAZEER, J.
1. We have heard the learned counsel for the parties.
2. This appeal is directed against the judgment and order dated 30.03.2017 in Criminal Revision No. 111 of 2017, whereby the High Court of Judicature at Patna has allowed the revision petition filed by the respondent Nos. 2 to 4 and set aside the order dated 22.12.2016 passed by the learned Assistant Chief Judicial Magistrate-VII, Motihari, taking cognizance of an offence punishable under Section 193 of the Indian Penal Code, 1860 (for short, ‘the IPC’) on the basis of a private complaint filed by the appellant.
3. Respondent Nos. 2 to 4 are the officials of Doordarshan and All India Radio. The appellant had joined the Doordarshan Kendra, Motihari, as an Engineering Assistant in the pay scale of Rs.1400/- to Rs.2600/-. It was contended that the pay scale of Engineering Assistants was revised from Rs.2000/- to Rs.3000/- with effect from 01.01.1986, by the Ministry of Information and Broadcasting by its decision dated 15.05.1995. The pay scale of Senior Engineering Assistant was revised from Rs.2000/- to Rs.3275/- with effect from 01.01.1986. It is his case that replacement pay scale of all the categories, with effect from 01.01.1996, was fixed at Rs.6500/- to Rs.10,500/-. The Employees Association of the concerned cadre, upon coming into force of Assured Career Progression (ACP) scheme, had represented for grant of 1st ACP in the pay scale of Rs. 8000/- to 13,500/- which was not being allowed, which led to the filing of an application before Central Administrative Tribunal, Patna Bench (for short 'the CAT'). This gave rise to O.A. No. 514 of 2002. The said O.A. was allowed by the CAT, by an order dated 07.09.2009.
4. The Union of India challenged the said order by filing a writ petition before the High Court. The High Court allowed the writ petition with an observation that no generalized direction could be given for the grant of ACP and the ACP has to be granted on individual basis. The appellant, thereafter, represented before the competent authority for grant of 1st ACP. On refusal, he filed O.A. No.173 of 2009 before the CAT, which was dismissed on 13.02.2013. The appellant, thereafter, approached the High Court by filing a writ petition CWJC No. 2797 of 2014, which was disposed of by an order dated 29.06.2014, with a direction to the respondents therein to pass appropriate order on the representation filed by the appellant. Alleging noncompliance of the said order, the appellant filed a contempt petition before the High Court, which gave rise to MJC No.2912 of 2015.
5. In the petition alleging contempt, it was contended that in the contempt case, the respondents filed a show-cause showing compliance of the order dated 29.06.2014, and accordingly, the contempt case was dropped with liberty to the appellant to challenge the order passed in compliance of the court’s directive before an appropriate forum. Instead of challenging the said order, the appellant filed a private complaint against respondent Nos. 2 to 4 before the Assistant Chief Judicial Magistrate-VII, Motihari alleging commission of offence punishable under Section 193 read with Section 34 of the IPC alleging that because of the false and wrong statement made by the respondents in their show-cause affidavit, the High Court dropped the contempt case. The Magistrate by an order dated 22.12.2016 took cognizance of the same and summoned respondent Nos. 2 to 4.
6. The respondent Nos. 2 to 4 challenged the said order of the Magistrate before the High Court. As noticed above, the High Court has allowed the criminal revision petition by its order dated 30.03.2017.
7. Learned counsel for the appellant submits that in the contempt petition filed by the appellant, the respondents had filed false affidavits prepared/forged outside the court. On the basis of the false affidavits, the High Court dropped the contempt case.
Therefore, the appellant filed a complaint before the Magistrate under Secti
