SANTOKH SINGH versus IZHAR HUSSAIN AND ANR.

SANTOKH SINGH

IZHAR HUSSAIN AND ANR.

April 25, 1973

(K. K. MATHEW AND l. D. DUA, JJ.]

Indian Penal Code, s. 211-lts scope.

Pursuant to an F.l.R. the respondent, 1 and few others were tried before the Addi. District Magistrate for offences under Ss. 147, 323/149 and 325/ 149, l.P.C.

The A.D.M. acquitted all the accused. Respondent Izhar, one of the accused was implicated and wrongly identified, although he was not one of the assailants .present at the place of occurrence.

Later, respondent Izhar filed petition before the A.D.M. under Ss. 476/479 .Cr. P.C. praying that the appellant, one K and the sub~Inspector of Police. be prose:uted for the offence under Ss. 211/193 I.P.C. because the S.I. in collusion with K had submitted wrong charge sheet whereas K had lodged false re-port at the instance of one and also these three persons had intentionally given false evidence during petitioner's trial and fabricated false evidence.

The Magistrate rejected the application of the respondent following the case of Shabir Hussain Bholu v. State of Maharashtra, A.l.R. 1963 S.C. 816. The Sessions Court also dismissed the appeal. On revision u/s. 435/439 Cr.P.C., the High Court recorded its opinion that it was fit case in which the complaint .under s. 211, I.P.C. should be filed against the persons responsible for Izhar's false prosecution and directed accordingly.

According to the respondents, when the appellant stated in the witness box that he had seen Izhar with others in 'marpit' and thereafter in the identification parade in the jail he· h~d made false charge against Izhar, therefore, he was liable to ~e prosecuted under s. 211 I.P.C.

Allowing the appeal.

HELD: (i) The essential ingredient of an offence ur.der s. 211 I.P.C. is to institute or cause to be instituted auy criminal proceeding against person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings resume false charge but false charge may be prepared even when no criminal proceedings result. In the present case, the appellant had not instituted any cri:......inal proceedings against anybody; neither did he 'falsely charge' any-body. Giving false evidence against an accused person during the course of criminal trial, may appropriately amount to an offence under Ss. 193, I.P.C.; but the statement in order to constitute the "charges" under sec. 211, I.P.C. should be made either in complaint or ·in report of cognisable offence to competent police officer with the intention of setting the criminal law in motion. Therefore, under the circumstances, no offence under s. 211, I.P.C. can be con-tddere<l to have been committed. [64D}

(ii) In view of the appellant's statement that he did not see Izhar amongst the assailants, it was not possible to understand how it could be expedient in the interest of justice to direct the appellant's prosecution. Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circums-tances when it determines the question of expediency. The court orders prose-cution in the larger interest of the administration of justice and not to gratify feelings of personal revenge. [65D-EJ

(iii) Identification at test parades could by no stretch of imagination, be ccn-, sidered to amount io false charge against the respondent Izhar as conten.1-plated by s. 211 1.P .C. Such identification is not substantive evidence and it can only be used as corroborative of the statemen.~ in court_. f65El

(iv) It is doubtful if the High Court had at all jurisdiction to make an order of complaint because it was neither the court which tried the original offences nor court to which the trial court was subordinate. The High Court. instead of directing the prosecution of the appellant, could have quashed the orders of the two courts belo\v and send the case back to the trial court for reconsideration of the matter in ac~-ordance with law. [65H]

Ku/dip Singh v. State of Punjab, [1956] S.C.R. 125 and Haridas v, State of West Bengal, [1964] 7 S.C.R. 237, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 35 of 1970.

Appeal by special leave from the judgment and order dated May 22, ,1969 of the Allahabad High Court, (Lucknow Bench) at Lucknow ID Cr. A. No. 132 of 1967.

R. K. Jain and A. K. G_upta, for the appellant

K. L. Kohli, for the respondents.

The Judgment of the Court was delivered by

Du A, J. In this appeal by special leave, the appellant challenges the order of learned single Judge of the Lucknow Bench of the Alla· habad High Court dated May 22, 1969 allowing the revision of Izhar Hussain and after setting aside the order of the Sessions Judge, Bara-banki dated March 15, 1967 as also that of the Additional District Magistrate (Judicial), Barabanki dated January 11, 1967, directing the Deputy Registrar of the High Court to file complaint under s. 211, I.P.C. against the appellant for false1y charging Izhar Hussain with offences under ss. 323 and 325 read with s. 149· and under s. 147, I.P.C. in the court of the Additional District Magistrate (Judicial), Barabanki.

It appears that pursuant to the first information report (Ext. Ka-9) lodged by Kartar Singh s/o Shri Lachman Singh at police station Kotwali Sub-District Nawabganj, District Barabanki on February 7, 1966, Izhar Hussain respondent and some others were tried in the court of the Additional District Magistrate (Judicial), Barabanki for offences under ss. 147, 323/149 and 325/149, I.P-C. Several witness-F es were examined in support of the prosecution case. Santokh Singh appellant appeared as P.W.4. In his examination in chief, so far as relevant for our purpose, he had deposed on September 3, 1966 as follows:-

"I had gone to the jail for identifying the accused per· sons. By putting his hand on Mohd. Zahir, Usman, Shah-G nshah, Pullan and Izhar Husain the witness stated, I had seen them in the marpit and thereafter in the identification parade in the jail-"

In cross-examination, he had stated, inter alia :-

"I did not see among the assailants the accused Izhar Hussain present in Court. I did not happen to see this boy in that night. The men of the Octroi post said to me that Anwar's. son Izhar was also present amoni.: the assallants. I identified this boy in the jail at the instance of tht> people of the Octroi post."

The Additional District Magistrate trying the case, acquitted all the accused of the offences charged on November 30, 1966. In the course of his judgment, the learned Magistrate observed inter alia :-

"One of the accused Izhar Hu~sain is boy aged about 13 y~ars. It has been stated by Kartar Singh and Santokh Smgh that actually they had not seen him at the place of occurrence. Still Santokh Singh identified him before Shri A. P. Singh, Magistrate. He explains that this he did be-cause the Octroi pen;,;mnel told him so. Obviously on their mere telling it could not have been possible to identify this boy."

Earlier the learned Magistrate had observed that Kartar Singh and Santokh Singh were obviously the victims of the assau!i. It is note-c worthy that the Additional District Magistrate while acquitting the accused persons did not hold that Santokh Singh had falsely charged Izhar Hussain or any other accused persons, nor did the learned Magistrate consider it to be expedient in the interest of justice to prosecute Santokh Singh for an offence under s. 211, J.P.C.

Jn January, 1967, Izhar Hussain presented an application in the court of the Additional District Magistrate (Judicial), Barabanki under ss. 476/479-A, Cr.P.C. (in the application as printed in the paper book apparently these sections have wrongly been described to be of I.P.C.) praying that Kartar Singh, Santokh Singh and R. D. Chowdhry, S.I., police station Kotwali, be prosecuted for the offence under ss. 2111193, I.P.C. because Shri R. D. Chowdhry in collusion with Shri .Kartar Singh had submitted wrong charge sheet whereas Kartar Singh had lodged false report at the instance of one Kamai! Singh and also that these three persons had intentionally given false evidence during the petitioner's trial and had also intentionally fabri-cated false evidence for the purpose of being used as evidence in the case.

(Judicial), Barabanki

The Additional District Magistrate observed that after consider-ing the evidenc~ in ·the main case he had disbelieved the witnesses for the prosecution and had held Izhar Hussain's prosecution to be false but in spite of this conclusion he had not directed any proceedings to be taken under s. 479-A, Cr.P.C., nor had be ordered criminal prosecution of the three aforementioned witnesses. The proceed-. ings under s. 4 76, Cr.P.C. were accordingly held incompetent. This view was taken on the basis of the ·decision of this Court in Kuppa. Goundan and another v. M. S. P. Rajesh([1]) and two other decisions of the Madras High Court. In his order, however, the learned Magis-trate also made reference to Shabir Hussain Bholu v. State of Maharashtra('). lzhar Hussain's application was considered by the Magistrate to be misconceived in view of the decision in Shabir Hussain's case (supra) and rejected.

lzhar Hussain took the matter on appeal to the court of the Sessions Judge but with no better fate. The Sessions Judge also

the The Sessions Judge also

referred t0 the aforesaid two decisions of this Court and observed as follows:-

"A~plyh1g. the sa!d principle of la':V as laid down by their Lordships, 1t 1s obv10us that the entue material was before the Court below and in spite of the fact that it arrived at the finding that the witness had perjured, it did not decide to proceed under Section 4 79-A, Code of Criminal Procedure. In these circumstances, it was not open to the Court below to have proceeded for prejury under Section 479-A Code of Criminal Procedure, a~ prayed by the learned ~ounsel appearing on behalf of the appellant, because upon the facts of the present case, out of which this appeal has arisen, the bar of clause (6) of Section 479-A clearly came into play. Thus, the Court below was correct in dismissing the applica-tion made by the appellant as misconceived.~

The appeal of Izhar Hussain was accordingly dis1!'issed.

Jzhar Hussain thereupon took the matter to the Lucknow Bench of the Allahabad High Court on revision under ss. 435/439, Cr.P-C. The learned single Judge observed that even accepting the view of the courts below that no complaint under s. 193, I.P.C. could be filed because of the technical defect, the applicant's prayer for filing complaint under s. 211, I.P.C. should have beeri considered. It was then observed that Izhar Hussain, boy of 13 years had been f~lsely prosecuted in the case and that his participation in the crime was highly improbable, if not impossible. He further observed that Kartar Singh had not named lzhar Hussain as one of the assailants in the F.I.R. lodged by him, nor did Kartar Singh i.ldentify Izhar Hussain as culprit in the test identification parade or in the trial court. Santokh Singh appellant, however, did identify Izhar Hussain as one of the participants in the crime in the test identification parade and also picked hi:n up in the trial court stating that he had also taken part in the crime. In the cross-examination, as the High Court itself noticed, Santokh Singh expressly admitted that he had not seen lzhar Hussain amongst the assailants and indeed he had not seen lzhar Hussain that night. On this material, the High Court felt that it had been established beyond doubt that lzhar Hussain had been implicated falsely. On this premise, the High Court recorded its opinion that it was fit case in which the complaint under s. 211, I.P.C. should be filed against the persons responsible for IZiiar 1Iussain's false prosecution. After so observing, the High Court felt that since , Kartar Singh had frankly stated that he had not seen Izhar Hussain at the spot on the night in question at :ill, there was no cogent ground for prosecuting him. The cases of Santokh Singh app~llant and of R. D. Chowdhry were considered to be different. Izhar Hussain's , father who carried on transport business through trucks and lorries had, according to the High Court, trade rivalry with Santokh Singh and his master. There was thus "foul attempt" to wreak vengeance against Izhar Hussain's father by falsely implicating the minor boy and for this reason it was directed that the complaint under s. 211, J.P.C. be filed against the appellant for falsely charging Izhar Hussain for the offences already mentioned.

7-L 944 SuP Cl/73

In this Court, Shri Gupta has very forcefully contended that on the material on the record this direction is wholly unjustified, ii not positively illegal, being based on misreading of evidence and on ~rroneous view of law. According to the submission, the appellanf had neither lodged the F.J.R. nor otherwise instituted any criminal proceeding or falsely charged Izhar Hussain within the contemplation of s. 2ll, l.P.C. Besides, there is absolutely no material on the record on which the High ·court could have formed an opinion that it is expedient in the interest of justice that complaint under s. 211, l.P.C. should be filed against the appellant.Shri Kohli on behalf of the respondents has tried to support the order of the High Court and has submitted that, as observed by Madholkar, J. in Haridas v. State of West Bengal(!) the words "or falsely charges" in s. 211, I.P.C. arc not restricted by the words "insti-tutes or causes to be instituted any criminal proceedini:". The Legis-lature according to the submission has provided in this section for two kinds of acts : (i) the institution of proceeding and (ii) making false charge. This section in the words of Mudholl::ar, J., added Sbri Kohli, is not limited to the institution of complaint upon false charge as such an interpretation wonld completely shut out criminal proceedings in which no charge of an offence has been made. It is on this observation that the learned counsel has tried to build and develop the contention that when the appellant s•ated in the witness box as P.W.4 that he bad seen Mohd. Zahir, Usman, Shabansbah, Pullan and Izhar Hussain in the marpit and thereafter in the identi-fication parade in the jail, he bad made fahe charge against Izhar Hussain and was, therefore, liable to be prosecuted for an offence under s. 211, I.P.C. The counsel has in this connection expressly stated that be does not want to prosecute the appellant for any offence mentioned in s. 4 79-A, Cr.P .C. The bar resulting from non-complain-ce with that section would, therefore, be ineffective so far as prosecu-tion for other offences is concerned. In support of his case he has relied on ss. 195(1)(b) and 476, I.P.C. Sectirn 195 so far as rele-vant reads :-

( 1) No Court shall take cognizance--

Prosecution for contempt of lawful authority of public servants.

Prosecution for certain offences against public justice.

(b) of a.ny offence punishable under any of the following sechons of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have ?een committed in, or in relation to, any proceedings m any Court, except on the complaint in writing of

~(17)~[1~9~64~j~7 S.C. R. 237.

such Court or of some other Court to which such Court is subordinate; or

Sub-section (3) of this section lays down that for the purposes of this section, Court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court. According to the proviso, where appeals lie to more than one court, the Appellate Court of inferior jurisdiction shall he the court to which such Court shall be deemed to be subordinate. Section 476 which provides for procedure in cases mentioned ins. 195 so far as relevant for our purpose lays down :-

"476. (1) When any Civil, Revenue or Criminal

Court i~, whether on application Procedure in cases made to it in this behalf or other-mentioned in wise, of opinion that it is expedient in section 195. the interests of justice that an in-quiry should be made into any offence referred to in section 195, sub-section (1), clause (b) or clause ( c), which appears to have been committed in or in relation to proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record finding to that effect and make complaint thereof ih writing signed by the presiding officer of the Court, and shall forward the same to Magistrate of the first class having juris-diction, and may take sufficient security for the appear-ance of the accused before such Magistrate or if the alleged offence is non-bailable may, if -Ct thinks neces-sary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate :

Provided that, where the Court making the complaint is High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

For the purposes of this sub-section, Presidency Magis· Irate shal be deemed to be Magistrate of the' first class."

Now, in the present case, the Additional District Magistrate had on November 30, 1966 acquitted all the accused of the offences charg-ed. He did not hold that the appellant had falsely charged lzhar Hussain with any offence, nor did he consider it expedient in the interest of justice to prosecnte him for an offence under s. 211, I.P.C. As already noticed when in January, 1967, Izhar Hussain applied to that court under ss. 476/479-A, Cr.P.C. for the prosecution of the appellant· and two others, the court felt that in view of the decision in Kuppa Goundan's case (supra) the proceedings under s. 476, Cr.P .C. were incompetent. Section 4 79-A has not been relied upon by Shri · Kohli and in our opinion rightly because on the admitted

facts in this case that section has not been complied with. In Kuppa Uoundan's case (supra) it was observed that the .scheme of s. 479-A Cr.P.C. is to enact special procedure for more expeditious and effective manner of dealing with certain cases of perjury and fabrica• tion of false evidence of witness in the course of judicial proceedings. But the necessary condition for applying this section is that the court must form an opinion that particular witness or witnesses is or are giving false evidence and at the time of delivering its judgment record finding to that effect. This was not done in this case. Now, by virtue of s. 4 79-A ( 6) no proceeding can be taken against Santokh Smgh under ss. 476 to 479 for giving false evidence. Shri Kohli's argument, as already noticed, is that the appellant is not being pro· secuted for giving false evidence as indeed that is not permissible now, but only for falsely charging Izhar Hussain in his evidence in court. The short question posed. therefore, is, if by giving false evi-dence as witness against Izhar Hussain the appellant can be said to have charged him within the contemplation of s-211, I.P.C. If this question is answered in the affirmative, then it will have to be deter-mined whether there is in fact false accusation and £.nally whether it is expedient in the interest of justice on the facts and circumstances of the present case to direct complaint to be filed under s. 211, J.P.C. This section as its marginal note indicates renders punishable false charge of offence with intent to injure. The ·essential ingredient of an offence under s. 211, I.P.C. is to institute or cause to be instituted any criminal proceeding against a· person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no ~riminal proceedings result. It is frankly conceded by Shri Kohli that the appellant cannot be said to have instituted any criminal proceeding against any person. So, that part of s. 211, I.P.C. is eliminated. Now, the _expression "falsely charge~" in this section, in our opinion, cannot mean giving false evidence as prosecution witness against an accused person during the course of criminal trial. "To falsely charge" must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to ·prove the false charge by making deposition in support of the charge framed in that trial. The words "falsely chaTges" have to be read along with the expression "institution of criminal proceeding". Both these expres-sions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to person in authority or to someone wbo is in position to get the offender punished by appropriate proceedings. In other words, it mnst be embodied either in complaint or in report of cognizable offence to the police officer or to an officer having authority ove(the person against whom the allegations are made. .The statemei;it m o.rder. to constitute the "charges" should be made with th~ intention and ob1ect

of setting criminal law in motion. Statement on oath falsely support-ing the prosecution case against an accused person more apprGpriatcly amounts to an offence under ss. 193 and 195, I.P.C. and not under s. 211, T.P.C. We do not think that the offences contemplated by ss. 193/195, l.P.C. on the one hand and s. 211, I.P.C. on the 0ther were intended by :he legislature, in this context,. to overlap so as to make it optional whether to proceed under one or the ether. The High Cou·t was, therefore, in error in thinking that in the present case the appellant's statement as witness in the trial courc. could be construed as charge against Izhar Hussain. Once it is held that no offence under s. 211, I.P.C. can be considered to have been com-mitted, then no other question arises for, as conceded by Shri Kohli, Sccti'.>n 479-A would bar prosecution for giving false evidence. The High Court also seems to have committed serious error in ignoring that in the appellant's statement he had clearly stated that he had not seen amongst the assailants the accused Izhar Hussain present in ,he court. In face of this statement, there was no question of the appellant havinf made any accusation against Izhar Hussain in his deposition. In any event, consideriug the entire statement of the appellant it is not understood how it can he considered expedient in the interest of justice to direct the appellant's prosecution. Every incorrect or false statement does not make it incumbent on the court to Qrder prosecution. The court has to exercise judicicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution. The High Court seems to have misunderstood the appellant's evidenc~ and has also failed to apply its mind to the question of expediency. Reference hy the High Court to identification parade is also somewhat inappropriate. Identification at test parades could by no stretch be ,considered to amount to false charge against Izhar Hussain as con-templated by s. 211, I.P.C. Such. identification is not substantive evidence and it can only he used as corroborative of the statement in court. The identification parade thus could not improve the pro-secution case.

Besides; we entertain considerable doubt if the High Court had at aH jurisdiction to make an order of complaint as it has done. It was either the court which tried the original offences or court to which the trial court was subordinate, that could make such an order. The court of the Additional District Magistrate would not seem to be subordiuate to the High Court as provided by section 195(3), Cr.P.C.' Kuldip Singh v. State of Punjab ( ') . Two courts below having _in their judicial discretion declined to direct the prosecution of the appel-H lant, on revision the High Court was, in our view, nofat all justified in itself directing the filing of the complaint. At best, if it considered

{I) [1956] S.C.R. 125.

the orders of the two courts below tainted with serious legal infirm\ty or manifest error resulting in grave mis"carriage of justice, it could have, after quashing those orders, sent the case back to the trial court for reconsideration "of the matter in accordance with law.

As result of the foregoing discussion, we have no hestitation in allowing this appeal and setting aside the order of the High Court.

Appeal allowed.