# Anil Kumar Rathore v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-17
- **Case number:** Criminal Misc. Writ Petition No. 6403 of 2021
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-rathore-v-state-of-u-p-ors-48094
- **Pages:** 15

## Headnote

A. Indian Penal Code,1860 - Sections
193,194 & 195 .- Quashing of F.I.R. -
The 'judicial proceeding' within the meaning
of Cr.P.C. does not include the proceeding of
investigation before a Police Officer as the
evidence before a Police Officer is not taken
on oath.

B. Only the material that has come before
the court during enquiry or trial which is
required to be proved according to law of
evidence can be said to be evidence within
the meaning of Section 195 I.P.C.
C. Neither the St.ment recorded by Police
Officer u/S 161 nor the police diary prepared
u/S 172 Cr.P.C. of Chapter XII can be read in
evidence before a court of law. Even a St.ment
u/S 164 Cr.P.C. cannot be read as substantive
evidence and has only corroborative value.

D. An investigation preparatory to a trial by a
Magistrate would be a stage of a judicial
enquiry in view of Illustration 2 Explanation 2 to
section 193 I.P.C., while a police investigation
preparatory
to
a
Magistrial
enquiry
for
commitment would not.

E. The St.ments recorded at the stage of police
investigation are not permitted to be treated as
evidence at the trial under Cr.P.C. and Indian
Evidence Act and thus such St.ments cannot be
made basis to frame charge for offences u/Ss
193, 194,195 I.P.C. Similarly any electronic or
documentary evidence produced before a Police
Officer alleged to contain a false St.ment, false
entry cannot be made basis for conviction for an
offence u/S 193, 194,195 I.P.C. unless and until
such evidence is produced before a court of law
during the course of enquiry or trial and is
proved or exhibited as a documentary evidence.

Writ Petition dismissed. (E-12)

List of Cases cited:

## Text

_Characters 0–39,773 of 51,857. This is a partial read: ask again with offset=39773 for what follows._

2 All. Anil Kumar Rathore Vs. State of U.P. & Ors.
133
matter on the point of punishment imposed
upon him.

30. In view of above discussion, the
appeal lacks merit and is accordingly
dismissed.

31. Certify the judgement along with
the lower court record to the court
concerned for compliance.
----------
(2022)02ILR A133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Criminal Misc. Writ Petition No. 6403 of 2021

Anil Kumar Rathore ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Vivek
Prakash
Mishra,
Meenakshi
Sharma, Sri Anoop Trivedi

Counsel for the Respondents:
A.G.A, Ms. Priyanka Midha, Sri Ram M.
Kaushik, Sri Dileep Kumar

A. Indian Penal Code,1860 - Sections
193,194 & 195 .- Quashing of F.I.R. -
The 'judicial proceeding' within the meaning
of Cr.P.C. does not include the proceeding of
investigation before a Police Officer as the
evidence before a Police Officer is not taken
on oath.

B. Only the material that has come before
the court during enquiry or trial which is
required to be proved according to law of
evidence can be said to be evidence within
the meaning of Section 195 I.P.C.
C. Neither the St.ment recorded by Police
Officer u/S 161 nor the police diary prepared
u/S 172 Cr.P.C. of Chapter XII can be read in
evidence before a court of law. Even a St.ment
u/S 164 Cr.P.C. cannot be read as substantive
evidence and has only corroborative value.

D. An investigation preparatory to a trial by a
Magistrate would be a stage of a judicial
enquiry in view of Illustration 2 Explanation 2 to
section 193 I.P.C., while a police investigation
preparatory
to
a
Magistrial
enquiry
for
commitment would not.

E. The St.ments recorded at the stage of police
investigation are not permitted to be treated as
evidence at the trial under Cr.P.C. and Indian
Evidence Act and thus such St.ments cannot be
made basis to frame charge for offences u/Ss
193, 194,195 I.P.C. Similarly any electronic or
documentary evidence produced before a Police
Officer alleged to contain a false St.ment, false
entry cannot be made basis for conviction for an
offence u/S 193, 194,195 I.P.C. unless and until
such evidence is produced before a court of law
during the course of enquiry or trial and is
proved or exhibited as a documentary evidence.

Writ Petition dismissed. (E-12)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun. & ors. AIR 2014
SC 1400

2. Ashok Pratap Rai Vs St. of U.P. & ors. Criminal
Misc. Writ Petition No. 2500/2016

3. Shamsul Qamar Vs St.of U.P. (1995)4 SCC 430

4. Haji Mohd. & anr. Vs St. Rep. by the Inspector
of Police, Koradacheri Police Station, Tiruvarur
District 2019(1) MLJ(Criminal) 464

5.
Maharashtra
St.
Electricity
Distribution
Company Ltd. & anr. Vs Datar Switgear Ltd. &
ors. (2010)10 SCC 479

6. Perumal Vs Janki (2014)5 SCC 377

7. Pandurang Chandrakant Matre Vs St. of Mah.
(2009)10 SCC 773
134 INDIAN LAW REPORTS ALLAHABAD SERIES
8. M/s Niharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors. AIR 2021 SC 1918

9. R.P. Kapur Vs St. of Punj. AIR 1960 SC 866

10. St. of Har. Vs Bhajan Lal 1992(Supp)1 SCC
335
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Mrs. Sadhna Rani (Thakur), J.)

1. Heard Sri Anoop Trivedi learned
Senior Advocate assisted by Sri Vivek
Prakash Mishra learned counsel for the
petitioner, Sri Dileep Kumar learned Senior
Advocate assisted by Ms. Priyanka Midha
learned counsel for the respondent no.
4/complainant and Ms. Meena learned
A.G.A. for the State.

2. The petitioner herein is seeking for
quashing of the first information report
dated 25.6.2021 registered as Case Crime
No. 466 of 2021, under Sections 147, 148,
419, 195, 452, 323, 504, 506, 427 and 120B I.P.C., Police Station Anoop Shahar,
District Bulandshahar on two grounds:

(i) Firstly that the allegations in
the
first
information
report
do
not
constitute commission of any offence
within the jurisdiction of the Police Station
Anoop Shahar, District Bulandshahar. It is
contended that as per the assertions in the
first information report, an incident dated
15.6.2021 had occurred at about 5:30 PM
inside the residence of the complainant
located in New Delhi, addressed at Farm
No. 2, Silver Oaklane, Satbari, New Delhi.
Both the complainant and the accused
persons in the said complaint reside in
Delhi. The concerned Officer of the Police
Station
Anoop
Shahar,
District
Bulandshahar had, thus, illegally registered
the FIR, the incident being beyond the area
of his territorial jurisdiction.

(ii)
Secondly,
there
is
no
allegation against the petitioner of his
involvement in the incident allegedly
occurred on 15.6.2021. No offence at all is
made out against the petitioner herein. As
regards the allegations of conspiracy to
lodge the false criminal case namely Case
Crime No. 450 of 2021 at the Police Station
Anoop Shahar, District Bulandshahar under
Sections 307, 323, 504 and 506 I.P.C., i.e.
in reporting the incident dated 10.6.2021, it
is contended that the offence as alleged
under Section 195 IPC cannot be made out
from any of the averments in the FIR. The
contention is that the material collected by
the Investigating Officer during the course
of the investigation of the said criminal
case (report) cannot constitute "evidence"
within the meaning of Section 3 of the
Indian Evidence Act, 1872. The "evidence"
as defined under Section 3 of the Evidence
Act is the oral and documentary evidences
filed before the Court upon which the Court
has to form its opinion during the course of
the trial.

3. The contention is that the statement
of the witnesses recorded under Section
161 Cr.P.C. by the Investigating Officer
cannot be used for any purpose at any
inquiry or trial in respect of any offence.
The only exception is that if the witness is
called for the prosecution in such inquiry or
trial, his said statement or any part of it, if
reduced in writing, may be used by the
prosecution to contradict the said witness,
in such manner as provided under Section
145 of the Indian Evidence Act. To
constitute an offence under Section 195
IPC, "the intention to procure conviction"
by giving or fabricating false evidence,
thereby to cause, or knowing it to be likely,
that it will cause any person to be convicted
2 All. Anil Kumar Rathore Vs. State of U.P. & Ors.
135
of
an
offence
punishable
with
imprisonment for life or imprisonment for a
term of seven years or upwards, is
necessary. The contention is that the
production of false evidence before a Court
of law intending thereby to cause the
accused to be convicted of the aforesaid
offence would amount to commission of
offence under Section 195 IPC. The crucial
condition to constitute offence under
Section
195
IPC,
according
to
the
petitioner, is whether on the alleged
fabricated material, the possibility of
conviction was there or not.

It is contended that neither the first
information report nor the Case diary
maintained under Section 172 Cr.P.C., or the
charge sheet/report prepared under Section
173(2) Cr.P.C. constitute evidence within the
meaning of Chapter XI of the Indian Penal
Code. The statement inserted whether in the
police diary or the material otherwise
collected by the police officer cannot be used
or mean as evidence under the Indian
Evidence Act for appreciation during the
course of trial. Section 172(2) Cr.P.C. clearly
provides that the police diaries of the case
sent to the Criminal Court cannot be used as
evidence in any enquriy or trial by the Court.

It is, thus, vehemently argued that the
element of "intention to procure conviction" on
false or fabricated evidence is completely
missing in the instant case. The contention, thus,
is that the "evidence" as occurring in Section 195
IPC is the evidence led in a Court of law in a
judicial proceeding and not otherwise.

4. Reliance is placed on the decision
of the Apex Court in Hardeep Singh vs.
State
of
Punjab
and
others1
to
substantiate the above assertions.

It is argued that the specific
questions framed by the Apex Court to
discern the meaning of the word "evidence"
answered therein would come to the rescue
of the petitioner herein, inasmuch as,
considering the meaning of the word
"evidence" under Section 3 of the Evidence
Act, it was held therein that the "evidence"
whether oral or documentary, means only
such evidence as is made before the Court
in relation to statement, and as produced
before the Court in relation to documents,
and not the material collected during
investigation as the inquiry by the Court is
neither attributable to the investigation nor
the prosecution but by the Court itself to
find out the truth of the allegations in the
FIR. It is contended that the material
collected during the investigation before
the trial actually constitutes a part of the
process of the inquiry. Such facts when
recorded during trial are evidence. It is
evidence only on the basis whereof trial can
be held. The same definition cannot be
extended for any material collected during
the inquiry/investigation either by the
Investigating Officer, the Magistrate or the
Court before commencement of the trial.
Apart from the evidence recorded during
trial, any material that has been collected
even by the Court after cognizance is taken
and before the trial commences cannot be
utilized as evidence recorded during trial.
The word "evidence" as defined under
Section 3 of the Evidence Act is, thus, the
statement of the witnesses that is recorded
during trial and the documentary evidence
led in accordance with the Evidence Act.
Only such evidence and the material on the
basis whereof the Court can form an
opinion as to the complicity of the accused
or some other person who may be
connected with the offence, can be said to
be evidence, to cause or likely to cause
conviction
of
such person(s)
to
be
convicted of the offence mentioned in
Section 195 IPC. The pre-requisite for
136 INDIAN LAW REPORTS ALLAHABAD SERIES
constituting an offence under Section 195 is
that there must exist allegation of giving or
fabricating false evidence in the criminal
trial, i.e. before a Court of law or else the
"intention to procure conviction of offence"
on false/fabricated evidence cannot be
found or will be lacking completely.

It is urged that as there is no
question of recording satisfaction by the
Court on the material/evidence (whether
oral or documentary) collected by the
Investigating Officer, which cannot be read
or admitted as evidence in the trial, no
offence is made out against the petitioner
from the reading of the FIR itself.

Much emphasis has been laid to
the discussion to the meaning of word
"evidence" under Section 3 of the Indian
Evidence Act in paragraphs ''56' to ''68' of
the said report (Hardeep Singh1].

5. The Division Bench judgment of
this Court in Ashok Pratap Rai vs. State
Of U.P. and 3 Others2 has been relied to
assert that in the similar facts and
circumstances, as in the present case,
relying upon the decision in Hardeep
Singh1, it was held by this Court that only
the material that has come before the Court
during inquiry or the trial, which is
required to be proved according to the law
of evidence can be said to be evidence
within the meaning of Section 195 IPC.

It was held therein that the
statement of the petitioner therein during a
television show to the T.V. correspondent
containing
references/allegations
of
commission
of
offence
against
the
complainant, do not constitute evidence
within the meaning of Section 3 of the
Evidence Act and hence the allegations in
the FIR do not disclose the ingredients of
the offence under Section 195 IPC and was
liable to be quashed.

Further reliance has been placed
on the decision of the Apex Court in
Shamshul Kanwar vs. State of U.P.3 to
assert that the police diary referred to in
Section 172, which the Court may call for,
can be used to the limited extent by the
Court as well as by the accused as
contained in Section 172(3) Cr.P.C., not as
evidence in the case, but to aid the Court in
such inquiry or trial.

Reliance is placed on the decision
of the Madras High Court in Haji
Mohammed and others vs. State Rep. By
the Inspector of Police, Koradacheri
Police Station, Tiruvarur District4 to
assert that the entries in the Case diary are
not the evidence, nor can they be used by
the Court unless the case comes under
Section 172(3) of the Code.

Placing the decision of the Apex
Court in Maharashtra State Electricity
Distribution
Company
Limited
and
another vs. Datar Switchgear Limited
and others5, it is argued that for
constituting an offence under Section 192
IPC in absence of any specific averment
demonstrating the role of the accused in the
commission of the offence, the alleged
fabrication of false evidence or adducing
the same in evidence, the ingredients of the
offence under Section 192 IPC cannot be
said to exist. The allegations in the first
information report or the complaint in such
case, taken at its face value and even
assuming to be correct in its entirety, do not
constitute the offence alleged.

The decision of the Apex Court in
Perumal vs. Janaki6 has been placed
before us to submit that the question before
the Apex Court was as to whether a police
officer filing a charge sheet can be said to
have made any statement on oath or is
bound by any express provision of law to
state the truth so as to try him for offence
under Section 193 of the IPC. The Apex
2 All. Anil Kumar Rathore Vs. State of U.P. & Ors.
137
Court therein was dealing with the
complaint under Section 190 of the Cr.P.C.
filed before the Judicial Magistrate praying
for trial of the police officer for an offence
under Section 193 of the IPC. The Judicial
Magistrate had rejected the complaint as
not maintainable in view of Sections 195
and 340 Cr.P.C. The revision filed against
the said order was also dismissed by the
High Court.

6. We may note at this juncture that
while dealing with the same, the Apex
Court had observed the question that
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 IPC required
further examination. Further 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 being a public servant he is obliged
to act in good faith. Considering the
provisions of Section 211 of the IPC as also
the language of Section 195 Cr.P.C., it was
held that the conclusion drawn by the
learned Magistrate in dismissing the
complaint was justified for the complaint
had not been
filed
by
the
person
contemplated under Section 195 Cr.P.C.
However, it was observed that the High
Court being Constitutional Court has been
invested
with
the
powers
of
superintendence over all Courts within its
territorial limits. It can certainly exercise
jurisdiction under Section 195(1) Cr.P.C.
As the allegations of the appellant was that
he had been prosecuted on the basis of
palpably false statements and further that
the respondent (police officer) did so for
extraneous consideration, it was opined that
it was an appropriate case where the High
Court
ought
to
have
exercised
the
jurisdiction under Section 195 Cr.P.C. The
appeal was, thus, allowed. The matter was
remitted back to the High Court for further
appropriate course of action to initiate
proceedings against the respondent/police
officer on the basis of the complaint of the
appellant therein, in accordance with law.

The decision of the Apex Court in
Pandurang Chandrakant Mhatre &
Others vs. State of Maharashtra7 has
been placed before us to contend that the
legal position that the first information
report is not a substantive piece of evidence
and that it can be used with regard to
testimony of the witnesses who depose in
respect of the incident, is fairly well settled.

7. Placing the above decisions, it is
vehemently argued by the learned Senior
Counsel for the petitioner that only an act
of giving false evidence or fabricating false
evidence in a judicial proceeding, with the
intention to procure conviction for offence,
as per the language employed in Section
195, may lead to conviction for the offence
under the said section. The investigation
which is preliminary proceedings before
the matter is brought in a Court of law,
cannot be brought within the meaning of
the judicial proceeding and the 'evidence'
led before the Investigating Officer would
not fall with the meaning of "evidence"
under Section 195 IPC. The allegations in
the first information report taken at its face
value and even if accepted in their entirety
do not constitute the offence as alleged
under Section 195 IPC and as such the
impugned FIR is liable to be quashed.

8. Having heard learned counsels for
the parties and perused the record, it may
be noted that the first information report
lodged on 25.6.2021 contains assertions
138 INDIAN LAW REPORTS ALLAHABAD SERIES
that in relation to a criminal case namely
Case Crime No. 450 of 2021 registered
under Sections 307, 323, 504 and 506 IPC
at Police Station Anoop Shahar, District
Bulandshahar on 10.6.2021, some unknown
persons had entered in the house of the
complainant on 15.6.2021 at about 5:30
PM, impersonating them as the police
officers for making investigation in the said
criminal case. Out of those, one named
accused
Satendra
Kumar
Bhati
was
impersonating
himself
as
Deputy
Superintendent of Police (D.S.P.). Those
persons had misbehaved and assaulted the
family members of the complainant and
also destroyed their household goods which
has caused loss of more than two lacs.

There are six named accused in
the FIR which has been lodged against
some unknown persons as well.

Another part of the allegation in
the first information report is that six
named accused in the first information
report had conspired to lodge a first
information report namely Case No. 450 of
2021 at Police Station Anoop Shahar,
District Bulandshahar on false evidence
with the intention to cause conviction of the
complainant for life imprisonment. The
said first information report was lodged as
Case Crime No. 466 of 2021 on 25.6.2021,
under Sections 147, 148, 419, 195, 452,
323, 504, 506, 427 and 120-B I.P.C., Police
Station
Anoop
Shahar,
District
Bulandshahar.

The petitioner before us is one of
the named accused, Anil Kumar Rathore.

9. From the careful reading of the
FIR, it is evident that the allegations
against
the
petitioner
herein
is
of
committing
an
offence
of
criminal
conspiracy with the other accused to lodge
a false report so as to cause the conviction
of
the
complainant
for
an
offence
punishable with imprisonment for life. The
first
information
report
in
question,
therefore, cannot be said to be only the
information of the incident occurred on
15.6.2021. With regard to the petitioner
herein, the allegations of commission of
offence under Section 195 readwith Section
120-B of the IPC are clear and categorical
therein.

As the Case Crime No. 450 of
2021 was registered in the Police Station
Anoop Shahar, District Bulandshahar and
the allegations in the first information
report
are
of
offence
of
criminal
conspiracy committed by the petitioner, a
named accused in lodging the said report,
the contention of the learned Senior
Counsel for the petitioner with respect to
lack of territorial jurisdiction of the police
station concerned, is found misplaced.
Even otherwise, the first information
report of an offence committed cannot be
quashed on the ground of lack of
jurisdiction
of
the
police
station
concerned. It must be left to the wisdom of
the police officer to decide as to whether
he has jurisdiction to proceed with the
investigation or not. The question as to
whether the offence alleged has been
committed within the area of his territorial
jurisdiction can very well be looked into
by the Investigating Officer.

10. The first limb of argument of the
learned Senior Counsel for the petitioner
that the first information report was only an
information with regard to the incident
occurred on 15.6.2021 at the residence of
the complainant in New Delhi and the
police officer at Police Station Anoop
Shahar,
District
Bulandshahar
lacked
jurisdiction to lodge the said report,
therefore, is turned down.
2 All. Anil Kumar Rathore Vs. State of U.P. & Ors.
139

11. As regards the second argument
pertaining to the quashing of the first
information report on the plea that it does
not disclose commission of the offence
under
Section
195
IPC,
we
would
deliberate the matter as under.

12. To deal with the submission of the
learned Senior Counsel for the petitioner
that even if the allegations in the first
information report are taken at its face
value and accepted in their entirety, do not
constitute the offence as alleged under
Section 195 IPC for the reason that any
statement
or
documentary
material
collected/produced during the course of
investigation before a police officer would
not
constitute
"evidence"
within
the
meaning of the Indian Evidence Act and
Section 195 IPC, it would be apposite to
first go through the relevant provisions as
contained in Chapter XI of the Indian Penal
Code.

For ready reference, Sections
191, 192, 193 and 195 relevant for our
purposes are reproduced as under:-

"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.

192. Fabricating false evidence:-
Whoever causes any circumstance to exist or
makes any false entry in any book or record,
or makes any document containing a false
statement, intending that such circumstance,
false entry or false statement may appear in
evidence in a judicial proceeding, or in a
proceeding taken by law before a public
servant as such, or before an arbitrator, and
that such circumstance, false entry or false
statement, so appearing in evidence, may
cause any person who in such proceeding is to
form an opinion upon the evidence, to
entertain an erroneous opinion touching any
point material to the result of such proceeding,
is said "to fabricate false evidence.

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 extend 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 extend to
three years, and shall also be liable to fine.

Explanation 1- A trial before a
Court-martial;
101[***]
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.

Illustration

A, in an enquiry before a
Magistrate for the purpose of ascertaining
whether Z ought to be committed for trial,
makes on oath a statement which he knows
to be false. As this enquiry is a stage of a
140 INDIAN LAW REPORTS ALLAHABAD SERIES
judicial proceeding, A has given false
evidence.

Explanation 3- An investigation
directed by a Court of Justice according to
law, and conducted under the authority of a
Court of Justice, is a state of a judicial
proceeding, though that investigation may
not take place before a Court of Justice.

Illustration

A, in any enquiry before an
officer deputed by a Court of Justice to
ascertain on the spot the boundaries of
land, makes on oath a statement which he
knows to be false. As this enquiry is a stage
of a judicial proceeding. A has given false
evidence.

195. Giving or fabricating false
evidence with intent to procure conviction
of offence punishable with imprisonment
for life or imprisonment:- Whoever gives
or fabricates false evidence intending
thereby to cause, or knowing it to be likely
that he will thereby cause, any person to be
convicted of an offence which [by the law
for the time being in force in [India]] is not
capital, but punishable with [imprisonment
for life], or imprisonment for a term of
seven years or upwards, shall be punished
as a person convicted of that offence would
be liable to be punished."

Chapter XI of the Indian Penal
Code constitutes offences pertaining to
false evidence and offences against public
justice. Section 191 IPC defines as to what
would constitute "giving false evidence" in
a case. Section 192 provides as to what
would
constitute
"fabricating
false
evidence". Section 192 provides that
whoever causes any circumstance to exist
or makes any document (or electronic
record) or makes any false entry in any
book or record (or electronic record)
containing a false statement, intending that
such circumstance, false statement or false
entry may appear in evidence in a judicial
proceeding, or in a proceeding taken by law
before a public servant as such, and that
such circumstance, false statement or false
entry, so appearing in evidence, may cause
any person who in such proceeding is to
form an opinion upon the evidence, to
entertain an erroneous opinion touching
any point material to the result of such
proceeding, is said to fabricate false
evidence.

The reading of Section 192 IPC
makes
it
clear
that
any
document
containing a false statement appearing in
evidence lead by any person, in a
proceeding taken by law before a public
servant, which may cause any person in
such proceeding who is to form an opinion
upon
the
evidence,
to
entertain
an
erroneous opinion touching any point
material to the result of such a proceeding,
is said to fabricate false evidence.

The phrase "in a proceeding taken
by law before a public servant as such" has
been placed before us by the learned Senior
Advocate for the respondent to contend that
any
false
evidence
led
before
the
Investigating Officer in a criminal case
would
fall
within
the
meaning
of
fabricating false evidence under Section
192 IPC.

13. To appreciate the said argument,
we have to look further into provisions of
Sections 193 and 195 (relevant for the
purpose of this case).

Section 193 provides punishment
for giving false evidence or fabricating
false evidence. It provides punishment of
two descriptions for such an evidence being
used; (i) in any stage of the judicial
proceeding, which is imprisonment for a
term extending to seven years with fine, (ii)
in any other case, punishment with
imprisonment for a term upto three years
2 All. Anil Kumar Rathore Vs. State of U.P. & Ors.
141
with fine. Thus, the gravity of offence of
fabricating false evidence and giving false
evidence depends on the nature of the
proceeding in which it has been used or
recorded.

Explanations (1) to (3) further
explains the words "judicial proceeding". The
phrase "an investigation directed by law
preliminary to a proceeding before a Court of
Justice" in Explanation (2) to Section 193
IPC has been placed before us by Sri Dileep
Kumar learned Senior Advocate for the
respondent to assert that an investigation
made by the police officer under Section 156
Cr.P.C. after lodging of the first information
report under Section 154, is an investigation
directed by law and being preliminary to a
proceeding before a Court of law, it is one of
the stages of a judicial proceeding. The words
"though that investigation may not take place
before a Court of Justice" further clarifies that
the investigation made by a police officer is
included as a stage of a judicial proceeding as
per Explanation (2) to Section 193 IPC.

14. The contention, thus, is that any false
or fabricated evidence placed before a police
officer during the course of investigation
would make the person leading such evidence
guilty of offence under Section 193, (first part)
of punishment. It is contended that Sections
191, 192 and 193 prescribe as to what
constitute offence of giving false evidence or
fabricating false evidence in a judicial or any
other proceeding and punishment for the said
offence with varying gravity. Section 195 IPC
is only an aggravated form of the offence
under Section 193. Section 195 is, thus, similar
to Section 193 except the gravity of the
offence in respect of which fabrication/purgery
is committed.

It
is
contended
that
if
a
complainant has lead false evidence before
a police officer during the course of
investigation with the intention to procure
the conviction of a person for an offence
which is punishable with imprisonment for
life or imprisonment for a term of seven
years or upwards, he shall be liable to be
punished for the same offence and
investigation for commission of such an
offence is to be processed when alleged.

15. To deal with the said submissions,
having noted the language employed in
Sections 191, 192, 193 and 195 IPC, the
question for consideration before us is
whether
any
evidence
led
by
the
complainant or any other person before the
police
officer
during
the
course
of
investigation can be said to be an evidence
led in a stage of a judicial proceeding
within the meaning of Section 193
Explanation (2) IPC. In other words,
whether the documents furnished before a
police officer in the police investigation
alleged to be fabricated false evidence can
be made basis to frame charge under
Section 193 IPC or 194 and 195 IPC
depending
upon
the
nature
of
the
proceeding and gravity of the offence in
which such an evidence is lead.

Under the Code (Indian Penal
Code), the words "judicial proceeding" has
not been defined, however, the words
"Judge",
"Court
of
Justice",
"Public
servant" have been defined in Sections 19,
20 and 21 of the Indian Penal Code;
respectively.
The
words
"judicial
proceeding" has been defined in Section
2(i) Cr.P.C. as including any judicial
proceeding in the course of which evidence
is or may be legally taken on oath. The
'judicial proceeding' within the meaning of
Cr.P.C., thus, does not include a proceeding
of investigation before a police officer as
the evidence before a police officer is not
taken on oath.
142 INDIAN LAW REPORTS ALLAHABAD SERIES

The illustration to Explanation (2)
of Section 193 explains further that any
inquiry before a Magistrate preparatory to
commitment for trial is a stage of a judicial
proceeding and if someone makes a
statement on oath which he knows to be
false, he can be punished for giving false
evidence under Section 193.

16. In Cr.P.C., the power and
procedure of police investigation and
magisterial
inquiry
are
provided
in
different
Chapters.
The
police
investigation starts with lodging of the
first information report of a cognizable
offence whereupon a police officer is
under duty to investigate. There is a
statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any
authority from the judicial authorities in a
matter. Where first information report is
lodged,
magisterial
inquiry
would
commence upon submission of the police
report of commission of offence.

Chapter XIV in Cr.P.C. deals
with the magisterial inquiry wherein a
Magistrate
is
empowered
to
take
cognizance of any offence with or
without a police report, i.e. suo motu or
on receipt of information or complaint of
facts which constitute such offence.

During the course of police
investigation under Chapter XII, the
police officer may record statements of
witnesses and collect such material in
order to find out the truth of the
allegations or commission of offence. The
case Diary under Section 172 Cr.P.C. is to
be maintained in the said process. On
completion of the investigation, the
police officer is obliged to submit a
report containing all necessary documents
in accordance with Section 173 Cr.P.C.

17. It may be noteworthy that neither
the statement recorded by the police officer
under Section 161 nor the police Diary
prepared under Section 172 of Chapter XII
can be read in evidence before a Court of
law. Even a statement under Section 164
Cr.P.C. cannot be read as a substantive
evidence and has only corroborative value.
The statement under Section 161 Cr.P.C.
can only be used during the course of the
examination of the witnesses to contradict
them. The case Diary under Section 172
Cr.P.C. can be called by the Court only to
refresh the memory of the police officer
who have maintained it or for the purpose
of contradicting such police officer.

18. Under the Indian Penal Code
(IPC),
a
"judicial
proceeding"
be
considered to be a proceeding before a
'Judge' as defined in Section 19 which
excludes a Magistrate holding an inquiry
preparatory to commitment for trial to
another Court, in respect of a charge on
which he has power only to commit. The
words "Court of Justice" denote a "Judge"
as defined under Section 19 and include a
body of Judge which is empowered by law
to act judicially as a body. The phrase in
Explanation (2) to Section 193 "An
investigation directed by law preliminary to
a proceeding before a Court of Justice",
however, include a magisterial inquiry
preparatory to commitment as an inquiry
directed by law preparatory to the trial in
view of the 'illustration' attached to it. The
effect of the 'illustration' is to make a
magisterial
inquiry
preparatory
to
commitment,
a
stage
of
a
judicial
proceeding.

To hold that a police investigation
is a stage of a judicial proceeding would
lead to anomaly for the reason that a
Magistrate trying a warrant case is a 'Court
2 All. Anil Kumar Rathore Vs. State of U.P. & Ors.
143
of Justice' within the meaning of Section 20
IPC whereas a Magistrate holding an
inquiry preparatory to commitment is not
even a 'Judge' in view of Section 19,
illustration
(d).
An
investigation
preparatory to a trial, by a Magistrate,
would be a stage of a judicial inquiry in
view of illustration to Explanation (2) to
Section
193
IPC,
while
a
police
investigation preparatory to a magisterial
inquiry for commitment would not.

19. Another reason to say so is that
there is no direction of law that the police
investigation should precede a trial. When a
Magistrate takes cognizance on a complaint
or suo motu proceeds to make an inquiry to
take
cognizance
of
an
offence
reported/coming to his knowledge, often
there is no police investigation. Section
193, thus, requires something more. It is
not enough that the police investigation
does as a matter of fact precede a trial.
There must be an express direction by law,
just as under Explanation (3) there must be
an express direction by a Court of Justice,
to make the investigation within the
meaning of Explanation (2). A statement
made to a police officer under Section 161
of the Code or 161 Cr.P.C. or a statement
made before a Magistrate under Section
164 of the Code cannot form the basis of
framing a charge, much less of conviction
under Section 193 IPC, though the person
making
the
statements
is
under
an
obligation to state the truth on both the
occasions.

20. The scheme of the Code of
Criminal
Procedure
makes
a
clear
distinction between the stage of police
investigation
and
that
of
judicial
proceedings by way of inquiry or trial.
There is a clear distinction between two
classes of statements also. This difference
is because of the circumstances and
surroundings under which the two sets of
statements are recorded before the Police
Officer and the Magistrate. This may be
taken to be recognition by the Legislature
of the harsh realities of the situation, that
the statements recorded at the stage of
police investigation are not permitted to be
treated as evidence at the trial under the
Code of Criminal Procedure and the Indian
Evidence Act.

In a case where police report of
commission of offence is lodged under
Section 154 Cr.P.C., the Court's function
begins when a report is submitted before it
under Section 173(2) Cr.P.C. and not until
then. On a fair interpretation of the Section
193 IPC, to hold that a statement, which is
not 'evidence' in a judicial proceeding, can
be made basis to frame a charge for offence
under the said Section, would result in
travesty of justice.

21. Similarly any documentary or
electronic evidence produced before a
police officer alleged to contain a false
statement, false entry cannot be made basis
for conviction for an offence under Section
193 IPC, unless and until such an evidence
is produced before a Court of law during
the course of inquiry or trial and is proved
or exhibited as a documentary evidence.

The reason being that the police
report is only a fact finding report and even
the Magistrate can ignore the conclusion
arrived at by the Investigating Officer and
independently apply his mind to the facts
emerging from the investigation and take
cognizance of the case, if he thinks fit by
exercising
his
power
under
Section
190(1)(b) Cr.P.C. It is open to the
Magistrate to act under Section 200 or 2002
also for taking cognizance of a case.
144 INDIAN LAW REPORTS ALLAHABAD SERIES
[Reference Minu Kumari and another vs.
State of Bihar and others8]

We may further note that in
Hardeep
Singh1,
the
question
for
consideration before the Apex Court was of
interpretation of word "evidence" used in
Section 319(1) Cr.P.C.:- whether the word
"evidence" used in the said section includes
the evidence collected during investigation
or is limited to the evidence recorded
during trial". While answering the said
question, the meaning of "evidence" under
Section 3 of the Indian Evidence Act and
the scope of power of the Code under
Section 319 Cr.P.C. has been considered to
hold that the word "evidence" as used in
Section 319 Cr.P.C. has to be understood in
its wider sense to include evidence both at
the stage of trial and even at the stage of
inquiry. It was, however, held that the
inquiry would be the inquiry conducted by
the Court before commencement of trial. It
was held that any material that has been
received by the Court after cognizance is
taken and before trial commences apart
from the evidence recorded during trial, can
be utilized to invoke the powers under
Section 319 of the Cr.P.C. It was, thus, held
that the evidence within the meaning of
Section 319 Cr.P.C. has to be broadly
understood and not literally, i.e. as evidence
brought during a trial. Section 319(1)
Cr.P.C. empowers the courts to proceed
against other persons who appears to be
guilty of offence though not an accused
before the Court. Section 319 Cr.P.C. uses
both terms, "inquiry" and "trial". It was
observed that trial is distinct from an
inquiry and must necessarily succeed it.
The inquiry must be a forerunner to the
trial.