KAMLA PRASAD SINGH versus HARI NATH SINGH & ANR.

KAMLA PRASAD SINGH

HARi NATH SINGH & ANR.

April 27, 1967

[M. HIOAYATULLAH AND C. A. VAIDIALINGAM, JJ.]

1"dia11 Pcm1/ Code. (45 of 1860) Ss. 192 a11d 218 -Difference-Fals• e\.·idence used in judicial proceedi'ngs--Public servant prepared false re~ eol'(/--P1ivu1e coniolaint. if can be made.

9ocle of Criminal Proced11re, (5 of 1898) S. 195-False evidence used in j1iilicial procetili11gs-Public se1Tant prepared false record-Pri-t.•ate c:o1nplaint if c,111 be 1nade.

The "PP•llanl, private ·rerson, filed three complaints under s. 2.18 1.P.C. for the prosecution o respondent 1 charging him in each cue with abetment of offences committed by three public 5ervants. In each complaint respondent I was co-accused with another-in one with an Ahlmad of Tahsildar's Court. in another with one Lekhpal, and in the third with the another 'Lekhpal. The Ahimud was alleged to have inten-tionally made false entry about the case intending that the false entry should he used in judicial· proceeding and wrong opinion be formed, 11>' Lekhmrh: were alle~ed to have caused the preparation of an in-correct Khasra knowing to .be likely thnt they would thereby cause loss or injury to the appellant. The responclenr I filed an application under s. 56(-A Cr.P.C. stating that the offence. if any, was one under s. 193 J.P.C. and the provisions of Ii, 195 Cr.P.C. barred private complaints, which the High Court accepted. In appeal, this Court,

HELD : The bar of private complaints applied to the case of Ahlmad, but not to those of Lekhpals. [832 C·Dl

The difference between ss. 192 and 218 I.P.C. is that the former deals with judicial proceeding and the false evidence is intended to be used in judicial proceedings. while the 111.tter deals_ with public servants, and, there the gist is the international preparation of false record with view of savin~ or injuring any person or property and need not have relation to judicial proceeding us such. (830 DJ

Section 19:! J.P.C. covers the case against tho Ahlmad and l'Ollpott· dent I und the offence is punishable under •. 193 I.P.C. which i• men-tioned in '· 195(1l(b) Cr.P.C. No Court can take cognizance of an offence under s. 193 except on the complaint in writing of such court. The alleged offence against the Lekhpals and respondent 1, their abettor, in the other two cases was of different order. ThO' offence of a. 2.18 l.P.C. is not minor offence included withins. 192. It is distinct offence which can be proceeded agninst without the baT of s. 195 Cr.P.C. 'Ibe offence wus complete the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in judicial proceeding so .. to cause an erroneous opinion tq be formed touching on point material to the result of such ·proceeding. In the Ahlmad's case this latter condition """ the most important ingredient. [831 B.C, D-0]

J.UR!SDICTION : Criminal

CRIMINAL APPELLATE

Appeals

Nos. 244·246 of 1964.

K. P. SINGH v. H. N. SINGH (Hidayatu/lah, J.)

Appeals from. the judgment and order dated February 19, 1964 of the Allahabad High Court in Criminal Misc. Applications Nos. 1853, 3043 and 3044 of 1963.

W. S. Barlingay, J. C. Jalwar and R. L. Kohli, for the appe-llant (in all the appeals).

J. P. Goyal and R. B. Pathak, for respondent No. 1 (in all the appeals).

The Judgment of the Court was delivered by

Hidayatullab, J. Kamla Prasad Singh the appellant had filed three complaints in the Court of the Additional District Magis-trate (Judicial) Varanasi for the prosecution of Harinath Singh (resPondent No. 1) under s. 218 Indian Penal Code. In each of these complaints Harinath was co-accused with another.. In one, it was Mangla Prasad Pandey, Ahlmad, Court of Tahs!ldar, Sadar Varanasi, in another it was Ramchander Lekhpal of V !Uage Balua and in the third it was Ram Samravlal Lekhpal of Village Cholapore. In each case Harinath Singh was said to have abetted the offence committed by his co-accused. The circums-tances in which the complaints were lodged were common and may now be briefly stated.

Certain Bhumidari lands in these villages were the property of Nankoo s/o Mehar Singh and Stimitra widow of one Ajudhia Singh. On December 4, 1962, Nankoo sold his half share to Kamla Prasad Singh and some otliers. Kamla Prasad's com-plaint is that Harinath Singh in conspiracy with the two Lekhpals got certain forged entries to be made in the Khasra after the sale in favour of Kamla Prasad, and applied for the correction of the Jamabandi. The Ahlmad in conspiracy with Harinath Singh ante-dated the said application to November 9, 1962, to make it ap~ that it was made prior to the sale-deed and to shield the Lekhpals. The application was entered in the register of Jama-band's as. Case No. 116 dated November 9, 1962 although the case bearmg that number was one between Bhagwati Singh and Bhagwati of Birbalpura Kaswal Raja. ·

Afte: th~ complaints were in Court, Harinath Singh filed an applkauon under s. 561-A of the Code of Criminal Procedure stating that the offence, if any, was one under s. 193 of the Indian Pen* Code and the provisions of s. 195 of the Code of Crimi-nal Procedure bai:red. the private complaints. The High Court accepte~ the apphcauon. for the above reason and quashing the proceedings agamst Han Nath Singh ordered his discharge. In t~ese appeals by certificate, the order of the High Court is ques-tioned.

The first question is what are the distinct features of s. 193 and s. 218 of the Indian Penal Code. Section 193 states the

piunishment for giving false evidence in any stage of judicial proceeding or fabricating false evidence for the purpose of being used in any stage of judicial proceeding. Section 191 defines the • offence of giving false evidence and s. 192 the offence of fabri-cating false evidence. We. may ignore s. 191 .because here ad· · mittedly there is no giving of false evidence as defined i11 the Penal Code. The offe11ce of fabricating false evidence comes into existence when person causes any circumstances to exist or makes any false entry in any book or record or makes any docu-ment containing false stateinent intending that such circum-stance, false entry or false statement may appear in evidence i11 judicial proceeding etc. and so appearing cause an erroneous · opinion be formed touching point material to the result of such proceeding. The offence ls general one and does not specify the person or the kind of document. It may be any person and the fabricated evidence may be In any form. Section 218 on the othe~ hand deals with the Intentional preparation of false re-cord by public servant with the object of saving or Injuring any person or property. The difference between the two sections is clearly noticeable. Section 192 deals wi:th judicial proceeding and the false evidence is intended to be used in judicial proceeding. Section 218 deals with public servants and there the gist is the intentional preparation of false record with view of saving ol' injuring any person or property. This need not have relation to judicial proceeding as such. 1

The bar of s. 195 of the Code of Criminal Procedure which was invoked by Hnri Nath Singh arises thus. No Court can take cognizance of an offence under s. t 93 when such offence is alleg-lld to have been committed In or in relntlon to any proceeding in any Court except on the complaint In writing of such Court. 'Jn these cases, Harl Nath Singh is charged wlth abetment of three offences committed by three public servant~ namely the two Lekh· pals who have caused the preparation of an incorrect Khnsra knowing it to be likely that they would thereby cause loss or injury to Kamla Prasad Singh and the other vendees. Hari Nath Singh is charged in the third case with abetment of the act of the Ahlmad who is allegeu to have intentionally made false entry about the case intending that the false entry should be used in judicial proceeding and wrong opinion be formed about the date of the institution of the proceeding.

It will appear from this that tho alleged offence committed

by the Ahlmad wns clearly in or in relation to n proceedinr; 'in Court. In fact he made an incorrect entry about u c~se actually in Court with the Intention th~t the dute of the Institution of the proceeding may be taken to be November 9, t 962 nltbouv:h the case was alleged to be Instituted after December 4. 1962.

His offence (if any be proved against him) would fall within s. · 192. Section 192 deals with fabrication of false evidence to be usei!'in judicial proceeding so as to cause an erroneous opinion to be formed on material point. Section 192 therefore com· pletely covers the case against Ahlmad, and must cover the case of Hari Nath Singh the alleged abettor. Section 218 Indian Penal Code does not apply in this case, because the record was not made with the object of saving or injuring any person or pro-perty. The offence of s. 192 Indian Penal Code is punishable under s. 193 Indian Penal Code and the latter section is one of the sections mentioned ins. 19S(l)(b) of the Code of Criminal Procedure, the gist of which has been reproduced above. The decision of the High Court was therefore right that the Court could not take cognizance of the offence alleged against the Ahl· mad and his abettor, because the offence was fabricating of false evidence in case which wu in fact pending and the false entry was made with the object that an erroneous opinion be formed on material point. Such case could only be instituted by Court in which or in relation to which this offence was committed and private complaint was therefore incompetent.

The alleged offence against the Lekhpals and their abet~r Hari Nath Singh in the other two cases is of different order. The offence of s. 218 Indian Penal Code is not minor offence, in-cluded within s. 192. It Is distinct offence which can be pro-ceeded against without the bar of s. 195 of the Code of Criminal Procedure. There is some resemblance between s. 192 and s. 218 tndlan Penal Code, because both deal with the preparation of false record. There the resemblance cea~es. Whereas In s. 192, the record is prepared for use In judicial proceeding with the Intention that an erroneous opinion be formed regarding mate· rial point, the offence In s. 218 Is the preparation of false record by 11 public servant with the intention of saving or injuring any person or property. The intention here was to save the property from the vendees namely Kamla Prasad Singh and others. The olfenc~ v.:as co.mplete ~e moment the false record was made with th.e said mtentton and 1t was not necessary for the completion of thts offence that the record should be used in judicial proceeding so ~ to cau~e an erroneous opinion to be formed touching on point .material to t~e. result of such proceeding. In the Ahlmad's case this latter cond111on Y:"as the. most Important ingredient. In the case of the Lekhpals, 1t was immaterial whether the record would be produc~ in judicial proceeding or not so as to cause an erroneous opinion to be formed. The intention wa~ to save thf property from the effects of the sale and the preparation of the alse record was therefore sufficient from this point of view In other words, the offence of the Lekhpals (If anv be p;oved l\&alnst them) wpuld fall within s. 218 and not s. t 92/ 193 of the Indian Penal Code. It may fall Jn the latter sections If the entry

can be said to be in or in relation to Court. This cannot be said of the entries in the Khasra. As s. 218 is not named in s. 195 of the Code of Criminal Procedure, the private complaint of Kamla Prasad Singh could be entertained by the Court and there was no bar.

To hold that record such as is contemplated in s. 218 Indian Penal Code is always one intended for use in Court would put s. 218 Indian Penal Code in s. 195 of the Code of Criminal Procedure which the Code of Criminal Procedure has not thought of. Therefore s. 218 Indian Penal Code must be treated as an independent and distinct offence. There could be private com-plaint in respect of an offence under s. 218 Indian Penal Code.

The result is that the case against Hari Nath Singh of abet-ment of the act of the Ahlmad could not begin except on com-plaint in writing of the Court concerned. There was no bar to the commencement of the case against Hari Nath Singh and the two Lekhpals on the private complaint of Kamla Prasad Singh. Accordingly Criminal Appeal No. 244 of 1964 shall be dismissed. Criminal Appeals Nos. 245-246 of 1964 shall be allowed and the concerned cases will be remitted to the Court of first instanc~ for trial according to law.

Appeal No. 244 dismissed. Appeals 245-246 allowed.