# BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUPERINTENDENT OF POLICE, CBI/SPE/ACU-II

- **Citation:** [2021] 2 S.C.R. 1020
- **Court:** Supreme Court of India
- **Decided:** 2021-03-12
- **Case number:** Criminal Appeal No. 305 of 2021
- **Bench:** Mohan M. Shantanagoudar, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhima-razu-prasad-v-state-rep-by-deputy-superintendent-of-police-cbi-spe-acu-ii-34814
- **Pages:** 40

## Headnote

Code of Criminal Procedure, 1973 - s.195(1)(b) - Penal
Code, 1860 - ss.420, 467, 468 and 471 - Prevention of Corruption
Act, 1988 - s.13(2) r/w. s.13(1)(d) - A case was registered against
the appellant/accused no.1 u/ss.420, 467, 468 and 471 of IPC and
s.13(2) r/w. s.13(1)(d) of the PC Act - Thereafter, the respondentinvestigative agency conducted search at the appellant's residence
and found an amount of Rs.79,65,900/-, in addition to jewellery
and property papers - Assets were found disproportionate to the
appellant's known sources of income - Another separate case was
registered u/s. 13(2) r/w. s.13(1)(d) of the PC Act - During the course
of investigation, accused no. 2 claimed that he had entered into an
agreement to sale to purchase properties from accused no.3 and
since he (accused no.2) was not available on the date of execution
of the agreement, he had entrusted the amount of Rs. 80 lakhs to
the accused no.1 - Since, the accused no.1 house was raided, the
money was not paid and agreement to sale was not executed - Hence,
accused no. 2 and 3 sought recovery of money - However, the
respondent-investigation agency revealed that the market value fixed
by the State Government of the said properties was much below
Rs.80 lakhs - The license of the stamp vendor/accused no.4, through
whom the stamp papers of sale deed were issued, was cancelled in
the year 1992 and sale deed were issued in the year 2001 - So, the
respondent-investigative agency alleged that the accused no.1
conspired with accused no.2-4 to fabricate false deed of agreement
to sale for the purpose of being shielded from legal action in the
disproportionate assets case - The charges were framed - The
accused contended that complaint u/s.195(1)(b), Cr.P.C. was
necessary for prosecuting the case u/s.193, IPC - The contention
was rejected by the trial Court - The trial Court convicted the
[2021] 2 S.C.R. 1020
1020
A
B
C
D
E
F
G
H
1021
appellant/accused no.1 u/s.13(2) r/w. s.13(1)(e) of the PC Act as
well as ss.120B and 193 of the IPC and accused no.2 and 3 were
convicted u/s.120B and s.193 of the IPC - Before the High Court,
the accused no. 2 and 3 reiterated that the requirements of
s.195(1)(b)(i) and s.340, Cr.P.C. were not complied with prior to
framing of charge u/s. 193 of IPC - The said contention was again
rejected by the High Court - The High Court confirmed the trial
Court's finding that the accused had conspired to fabricate false
evidence for shielding appellant/accused no.1 from prosecution in
the disproportionate assets case - Whether s.195(1)(b)(i),Cr.P.C.
bars lodging of case by the investigating agency u/s. 193, IPC, in
respect of offence of giving false evidence which is committed at
the stage of investigation, prior to production of such evidence
before the Trial Court - Held: S. 195(1)(b)(i), Cr.P.C. will not bar
prosecution by the investigating agency for offence punishable u/
s.193, IPC, which is committed during the stage of investigation -
This is provided that the investigating agency has lodged complaint
or registered the case u/s. 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 s.195(1)(b)(i), Cr.P.C. - Thus, appellants directed to
surrender for serving out the rest of their sentence, if they are not
already in custody.
Code of Criminal Procedure, 1973 - s.195(1)(b)(i) - Whether
an offence u/s.193, IPC committed at the stage of investigation,
prior to production of the false evidence before the trial Court by a
person who is not yet party to proceedings before the Trial Court, is
an offence "in relation to" a proceeding in any court u/s.
195(1)(b)(i), Cr.P.C. - Held: The words "in relation to" u/s.
195(1)(b(i) appear to encompass situations wherein false evidence
has been fabricated prior to being produced before a Court of law,
for the purpo

## Text

_Characters 0–39,144 of 96,804. This is a partial read: ask again with offset=39144 for what follows._

A
B
C
D
E
F
G
H
1020
SUPREME COURT REPORTS
[2021] 2 S.C.R.
BHIMA RAZU PRASAD
v.
STATE, REP. BY DEPUTY SUPERINTENDENT OF POLICE,
CBI/SPE/ACU-II
(Criminal Appeal No. 305 of 2021)
MARCH 12, 2021
[MOHAN M. SHANTANAGOUDAR AND
VINEET SARAN, JJ.]
Code of Criminal Procedure, 1973 - s.195(1)(b) - Penal
Code, 1860 - ss.420, 467, 468 and 471 - Prevention of Corruption
Act, 1988 - s.13(2) r/w. s.13(1)(d) - A case was registered against
the appellant/accused no.1 u/ss.420, 467, 468 and 471 of IPC and
s.13(2) r/w. s.13(1)(d) of the PC Act - Thereafter, the respondentinvestigative agency conducted search at the appellant's residence
and found an amount of Rs.79,65,900/-, in addition to jewellery
and property papers - Assets were found disproportionate to the
appellant's known sources of income - Another separate case was
registered u/s. 13(2) r/w. s.13(1)(d) of the PC Act - During the course
of investigation, accused no. 2 claimed that he had entered into an
agreement to sale to purchase properties from accused no.3 and
since he (accused no.2) was not available on the date of execution
of the agreement, he had entrusted the amount of Rs. 80 lakhs to
the accused no.1 - Since, the accused no.1 house was raided, the
money was not paid and agreement to sale was not executed - Hence,
accused no. 2 and 3 sought recovery of money - However, the
respondent-investigation agency revealed that the market value fixed
by the State Government of the said properties was much below
Rs.80 lakhs - The license of the stamp vendor/accused no.4, through
whom the stamp papers of sale deed were issued, was cancelled in
the year 1992 and sale deed were issued in the year 2001 - So, the
respondent-investigative agency alleged that the accused no.1
conspired with accused no.2-4 to fabricate false deed of agreement
to sale for the purpose of being shielded from legal action in the
disproportionate assets case - The charges were framed - The
accused contended that complaint u/s.195(1)(b), Cr.P.C. was
necessary for prosecuting the case u/s.193, IPC - The contention
was rejected by the trial Court - The trial Court convicted the
[2021] 2 S.C.R. 1020
1020
A
B
C
D
E
F
G
H
1021
appellant/accused no.1 u/s.13(2) r/w. s.13(1)(e) of the PC Act as
well as ss.120B and 193 of the IPC and accused no.2 and 3 were
convicted u/s.120B and s.193 of the IPC - Before the High Court,
the accused no. 2 and 3 reiterated that the requirements of
s.195(1)(b)(i) and s.340, Cr.P.C. were not complied with prior to
framing of charge u/s. 193 of IPC - The said contention was again
rejected by the High Court - The High Court confirmed the trial
Court's finding that the accused had conspired to fabricate false
evidence for shielding appellant/accused no.1 from prosecution in
the disproportionate assets case - Whether s.195(1)(b)(i),Cr.P.C.
bars lodging of case by the investigating agency u/s. 193, IPC, in
respect of offence of giving false evidence which is committed at
the stage of investigation, prior to production of such evidence
before the Trial Court - Held: S. 195(1)(b)(i), Cr.P.C. will not bar
prosecution by the investigating agency for offence punishable u/
s.193, IPC, which is committed during the stage of investigation -
This is provided that the investigating agency has lodged complaint
or registered the case u/s. 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 s.195(1)(b)(i), Cr.P.C. - Thus, appellants directed to
surrender for serving out the rest of their sentence, if they are not
already in custody.
Code of Criminal Procedure, 1973 - s.195(1)(b)(i) - Whether
an offence u/s.193, IPC committed at the stage of investigation,
prior to production of the false evidence before the trial Court by a
person who is not yet party to proceedings before the Trial Court, is
an offence "in relation to" a proceeding in any court u/s.
195(1)(b)(i), Cr.P.C. - Held: The words "in relation to" u/s.
195(1)(b(i) appear to encompass situations wherein false evidence
has been fabricated prior to being produced before a Court of law,
for the purpose of being used in proceedings before the Court -
The Construction of the words "in relation to" must be controlled
by the overarching principle as stated in Patel Laljibhai Somabhai
and Sachida Nanda Singh, which was affirmed by the Constitution
Bench in Iqbal Singh Marwah - That is, even if the offence is
committed prior to giving of the fabricated evidence in the Court, it
must have a direct or reasonably close nexus with the court
proceedings.
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
A
B
C
D
E
F
G
H
1022
SUPREME COURT REPORTS
[2021] 2 S.C.R.
Code of Criminal Procedure, 1973 - s.195(1)(b)(i) - Penal
Code, 1860 - s.193 - Whether the words "stage of a judicial
proceeding" under Explanation 2 to s.193, IPC can be equated
with "proceeding in any court" u/s.195(1)(b)(i), Cr.P.C. - Held:
The purpose of s.195(1)(b)(i), Cr.P.C., there must be an intention
on part of the alleged offender to directly mislead the Court into
forming a certain opinion by commission of offence u/s.193, IPC -
Though a criminal investigation is certainly a stage of a judicial
proceeding insofar as it may culminate in issue of process and trial
against the accused, it would not be a proceeding in relation to a
certain Court u/s.195(1)(b)(i), Cr.P.C. before the Court has even
taken judicial notice of such investigation - The difference between
a "stage" of a judicial proceeding and the judicial proceeding itself
must be emphasized in this regard.
Code of Criminal Procedure, 1973 - s.195(1)(b)(i) and
s.195(1)(b)(ii) - Difference between - Held: There is a pertinent
difference in the wording of s.195(1)(b)(i) and s.195(1)(b)(ii)
inasmuch as s.195(1)(b)(ii) is restricted to offences which are
committed in respect of a document which is "produced or given in
evidence in a proceeding in any court" - Whereas s.195(1)(b)(i)
applies to offences against public justice which are committed not
only in any proceeding in any court, but also "in relation to" such
proceeding.
Dismissing the appeals, the Court
HELD: 1. General overview of the law on Section 195(1)
(b)(ii), Cr.P.C.
1.1 The issue of whether Section 195(1)(b) (ii), CrPC is
applicable to documents which are forged prior to their production
in Court is no longer res integra. This Court in Sachida Nand
Singh has held that Section 195(1)(b)(ii) read with Section 340(1),
CrPC will only apply in respect of offences which are committed
during the time when the document concerned was custodia legis
or in the custody of the Court. [Para 7][1037-F-G]
1.2 The observations of the Supreme Court in Patel Laljibhai
Somabhai, as cited in Sachida Nand Singh, make the import and
purpose of Section 195(1)(b), CrPC clear. The provision is
A
B
C
D
E
F
G
H
1023
intended to bar the right to initiate prosecution only where the
offence committed has a reasonably close nexus with the court
proceedings, such that the Court can independently determine
the need for an inquiry into the offence with reference to its own
records. Therefore, the offence must be such that directly impacts
administration of justice by the Court. This would certainly be
the case if the document was in the custody of the Court at the
time of commission of offence. However, the bar under Section
195(1)(b)(ii) cannot be read as operating even in cases where
the offence against administration of justice was committed in
respect of a document : 1) outside of the Court, 2) by a person
who was not yet party to the Court proceedings, and, 3) at a time
long before the production of the document before the Court.
The same would not have a "reasonably close nexus" with the
court proceedings. Though these observations in Sachida Nand
Singh were made in the context of Section 195(1)(b)(ii), this Court
finds that they have useful application in interpreting Section
195(1)(b)(i) as well. The prohibition contained in Section
195(1)(b)(i) should not be extended to provide protection to a
person who has been accused of tendering false evidence during
the investigative stage prior to becoming a party to the court
proceedings and producing such evidence before the Court. The
view taken in Sachida Nand Singh was subsequently affirmed by
the Constitution Bench in Iqbal Singh Marwah. [Paras 7 and
8][1040-B-H]
1.3 Similar to Sachida Nand Singh, the Constitution Bench
also referred to the observations made by the three-Judge Bench
in Patel Laljibhai Somabhai on Sections 192(b) and 192(c) of the
Code of Criminal Procedure, 1898 ("1898 Code") which
corresponded to Section 192(1)(b)(i) and (ii) of the present CrPC
respectively. This Court in Patel Laljibhai Somabhai had noted
that even under Section 192(b) of the 1898 Code (corresponding
to Section 195(1)(b)(i), CrPC), the offence committed is one with
a "close nexus" to the court proceedings. [Para 8][1045-A-C]
2. Import of the Words "in relation to" in Section 195(1)(b)
(i), CrPC.
2.1 The phrase "in relation to any proceeding in any Court",
which appears in Section 195(1)(b)(i), CrPC but is absent in
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
A
B
C
D
E
F
G
H
1024
SUPREME COURT REPORTS
[2021] 2 S.C.R.
Section 195(1)(b)(ii). It may be argued that this phrase makes
the scope of Section 195(1)(b)(i) wider than Section 195(1)(b)(ii).
The words "in relation to" under Section 195(1)(b(i) appear to
encompass situations wherein false evidence has been fabricated
prior to being produced before a Court of law, for the purpose of
being used in proceedings before the Court. Therefore, it may
not be possible to apply the ratio of Iqbal Singh Marwah by
way of analogy to Section 195(1)(b)(i) in every case. [Para 9]
[1045-C-E]
2.2 The construction of the words "in relation to" must be
controlled by the overarching principle applicable to Section
195(1)(b), CrPC as stated in Patel Laljibhai Somabhai and Sachida
Nand Singh, which was affirmed by the Constitution Bench in
Iqbal Singh Marwah. That is, even if the offence is committed
prior to giving of the fabricated evidence in court, it must have a
direct or reasonably close nexus with the court proceedings.
[Para 14][1049-B-C]
2.3 Looking to the decision in Bandekar Brothers, is true
to say that Section 195(1)(b)(i), CrPC may be attracted to the
offence of fabricating false evidence prior to its production before
the Court, provided that such evidence is led by a person who is
party to the court proceedings, for the purpose of leading the
Court to form a certain opinion based on such evidence. The bar
against taking of cognizance under Section 195(1)(b)(i) may also
apply where a person who is initially not a party to the court
proceedings fabricates certain evidence, and 1) subsequently
becomes a party and produces it before the Court; or; 2) falsely
deposes as a witness before the Court on the strength of such
evidence, for the purpose of causing the Court to form an
erroneous opinion on a point material to the result of the
proceedings. [Para 15][1049-C-E]
2.4 However, 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.
There is an indirect nexus inasmuch as if the investigating agency
does not suspect any wrongdoing, and the Court commits the
case for trial, the evidence will be produced for the Court's perusal
A
B
C
D
E
F
G
H
1025
and impact the judicial decision-making process. However, it may
be equally possible that even if the fabricated evidence appears
sufficiently convincing, the investigating agency may drop
proceedings against the accused and divert its time and resources
elsewhere. Therefore, the offence may never reach the stage of
court proceedings. Further, if it subsequently comes to light that
the evidence was falsely adduced, it will be the investigating
agency which will suffer loss of face and be forced to conduct a
fresh investigation. Hence, 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.
It is possible that Courts may be more pro-active in making
complaints under Section 195(1)(b)(i), CrPC upon application
made by the concerned investigative agencies, than in those
preferred by private parties. The former being public authorities
would enjoy more credence in seeking inquiry into their claims.
Therefore, the reasons assigned by the Constitution Bench in
Iqbal Singh Marwah for adopting a narrow construction of Section
195(1)(b)(ii), CrPC may not be strictly applicable in the present
case. [Paras 16 and 17][1049-F-H; 1050-A; 1051-F-G]
2.5 Just like a private party who has been a victim of forgery
committed outside the precincts of the Court, the investigative
agency should not be left remediless against persons who have
producing false evidence for the purpose of interfering with the
investigation process. [Para 17.1][1052-A-B]
2.6 It would not be possible for the Court to independently
ascertain the need for lodging a complaint under Section
195(1)(b)(i) read with Section 340, CrPC when the evidence
alleged to have been falsified is not even present on its records.
Rather, it is the investigating agency which is best placed to verify
and prove whether such falsification has taken place, through
what means and for what purpose. [Para 17.2][1052-D-E]
2.7 The investigation agency cannot be compelled to take
a chance and wait for the trial court to form its opinion in each
and every case. This may give the offender under Section 193,
IPC sufficient time to fabricate more falsehoods to hide the
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
A
B
C
D
E
F
G
H
1026
SUPREME COURT REPORTS
[2021] 2 S.C.R.
original crime. Further, irrespective of the potential impact that
such false evidence may have on the opinion formed by the trial
court, the investigating agency has a separate right to proceed
against the accused for attempting to obstruct fair and transparent
probe into a criminal offence. Thus, this Court is of the view that
it would be impracticable to insist upon lodging of written
complaint by the Court under Section 195(1)(b)(i), CrPC in such
a situation. [Para 17.3][1052-G-H; 1053-A]
3. Whether "stage of a judicial proceeding" under
Explanation 2 to Section 193, IPC is synonymous with
"proceeding in any court" under Section195(1)(b)(i),CrPC?
3.1 The purpose of Explanation 2 to Section 193, IPC is
evidently to ensure that a person who fabricates false evidence
before an investigating or inquiring authority prior to the trial of
the case does not escape penalty. This encompasses all nature of
proceedings, whether civil or criminal. However, whether the
commission of such offence would require the complaint of a Court
under Section 195(1)(b)(i) would depend upon the authority before
whom such false evidence is given. For example, if a person gives
false evidence in an inquiry before the Magistrate under Section
200, CrPC, that would undoubtedly be an offence committed
before a Court under Section 195(1)(b)(i), CrPC. However, this
would not be the case where false evidence is led before an
investigating officer prior to the Court having taken cognizance
of the offence or the case being committed for trial.
[Para 20.1][1054-F-H]
3.2 The object and purpose of Section 195(1)(b), CrPC must
be borne in mind whilst determining whether the fabrication of
false evidence during a stage of a judicial proceeding amounts to
having made such fabrication in relation to a proceeding before
the Court. At the cost of repetition, it must be emphasized that
Section 195(1)(b) is meant to restrict the right to make complaint
in respect of certain offences to public servants, or to the relevant
Court, as they are considered to be the only party who is directly
aggrieved or impacted by those offences. Furthermore, for the
purpose of Section 195(1)(b)(i), CrPC, there must be an intention
on part of the alleged offender to directly mislead the Court into
forming a certain opinion by commission of offence under Section
A
B
C
D
E
F
G
H
1027
193, IPC. Though a criminal investigation is certainly a stage of a
judicial proceeding insofar as it may culminate in issue of process
and trial against the accused, it would not be a proceeding in
relation to a certain Court under Section 195(1)(b) (i), CrPC before
the Court has even taken judicial notice of such investigation.
The difference between a "stage" of a judicial proceeding and
the judicial proceeding itself must be emphasized in this regard.
[Para 20.2][1055-A-D]
3.3 In the present case, it is not the Trial Court but the
Respondent authority/agency which has been directly impacted
due to fabrication of evidence by the Appellants/accused. The
Appellants' intention was not to mislead the Trial Court, at least
not at the first instance. Rather, their goal was to ensure that the
Appellant/Accused No. 1 was cleared of wrongdoing at the stage
of investigation itself. It was after being charged under Section
193, IPC, that the Appellants/accused reiterated the fictitious
escrow arrangement story before the Trial Court so as to prove
their innocence. Hence it cannot be said that the offence under
Sections 120B read with 193, IPC was committed by the Appellants
"in relation to" a proceeding in a court under Section 195(1)(b)(i),
CrPC. [Para 22.1][1057-G-H; 1058-A]
3.4 Had this been a case wherein the Respondent had not
developed any suspicion against Accused Nos. 2 and 3, and the
Trial Court had subsequently discovered the subterfuge caused
by them, we may have taken a different view. As this Court has
noted, where the fabrication of evidence has escaped the scrutiny
of the investigating agency, and the case is subsequently brought
to trial, such evidence would have direct bearing on the trial
court's opinion and hence the bar under Section 195(1)(b)(i),
CrPC may be applicable. However, in the present case, the
investigating agency has been sagacious enough to detect the
commission of offence under Section 193, IPC at the preliminary
stage. Therefore, as stated earlier, it would be unjust and
impracticable to insist upon the requirement of an independent
inquiry and written complaint by the Trial Court in such a scenario.
[Para 22.3][1058-D-F]
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
A
B
C
D
E
F
G
H
1028
SUPREME COURT REPORTS
[2021] 2 S.C.R.
3.5 Thus, the questions of law stated stand answered against
the Appellants/accused. Even on merits, there is no valid reason
to interfere with the concurrent findings of the Trial Court and
the High Court. The High Court has rightly observed that the
Appellant/Accused No. 1 had not raised the defence of holding
the money in escrow for Accused Nos. 2 and 3 at the time of
search conducted at his house on 24.01.2001. The supposed
agreement of sale was also not produced. This defence was raised
by Accused Nos. 2 and 3 at a highly belated stage on 4.02.2002,
almost a year after the recovery of the seized currency, though
the Appellant had corresponded with Accused No. 2 in May-June,
2001. It is improbable in the ordinary course of conduct that a
person would wait so long to claim an amount of approximately
Rs. 80 lakhs which was required for completion of sale transaction.
The stamp paper on which the sale deed was made was also proved
to be illegal. Hence it is apparent that the Appellants/accused
entered into an elaborate conspiracy and attempted to create a
false circumstance of escrow transaction for the purpose of
shielding Appellant/Accused No. 1 from prosecution. In fact, the
High Court has shown great lenity by reducing the sentences
awarded to the Appellants/accused in view of their advanced age
and delay in completion of the trial. In view of the gravity of the
offence, no further benefit can be granted to them in this regard.
[Para 23][1058-F-H; 1059-A-C]
Iqbal Singh Marwah and Another v. Meenakshi Marwah
and Another, (2005) 4 SCC 370 : [2005] 2 SCR 708 -
followed.
Sachida Nand Singh and Another v. State of Bihar and
Another, (1998) 2 SCC 493 : [1998] 1 SCR 492; Patel
Laljibhai Somabhai AIR 1971 SC 1935 - relied on.
Arvindervir Singh v. State of Punjab and Another,
(1998) 6 SCC 352 : [1998] 3 SCR 1004; Lalji Haridas
v. State of Maharashtra, (1964) 6 SCR 700; Babita Lila
and Another v. Union of India, (2016) 9 SCC 647 :
[2016] 7 SCR 604; Chandrapal Singh and Others v.
Maharaj Singh and Another, (1982) 1 SCC 466 -
distinguished.
A
B
C
D
E
F
G
H
1029
Bandekar Brothers Pvt. Ltd. and Another v. Prasad
Vassudev Keni and Others, AIR 2020 SC 4247; State
of Punjab v. Jasbir Singh, (2020) 12 SCC 96 : 2020
(2) JT 469; Surjit Singh and Others v. Balbir Singh,
(1996) 3 SCC 533 : [1996] 3 SCR 70; Kailash Mangal
v. Ramesh Chand (Dead) Through Legal Representative,
(2015) 15 SCC 729 : [2015] 2 SCALE 615; Narendra
Kumar Srivastava v. State of Bihar and Others, (2019)
3 SCC 318 : [2019] 2 SCR 643; Punjab and Haryana
High Court Bar Association, Chandigarh Through its
Secretary v. State of Punjab and Others, (1994) 1 SCC
616 : [1993] 3 Suppl. SCR 915; Punjab & Haryana
High Court Bar Association v. State of Punjab and
Others, (1996) 4 SCC 742 : [1996] 2 Suppl. SCR 787
- referred to.
Case Law Reference
[2005] 2 SCR 708
followed
Para 3.3
[1998] 1 SCR 492
relied on
Para 3.4
AIR 1971 SC 1935
relied on
Para 7
[1996] 3 SCR 70
referred to
Para 8
[2019] 2 SCR 643
referred to
Para 11
[1998] 3 SCR 1004
distinguished
Para 19
[1993] 3 Suppl. SCR 915
referred to
Para 19
[1996] 2 Suppl. SCR 787
referred to
Para 19
[1964] 6 SCR 700
distinguished
Para 21
[2016] 7 SCR 604
distinguished
Para 21.1
(1982) 1 SCC 466
distinguished
Para 21.2
CRIMINAL APPEAL JURISDICTION: Criminal Appeal No.
305 of 2021
From the Judgment and Order dated 06.01.2020 of the High Court
of Judicature at Madras in CRL.A.No. 1089 of 2007.
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
A
B
C
D
E
F
G
H
1030
SUPREME COURT REPORTS
[2021] 2 S.C.R.
With
Criminal Appeal No. 306 and 307 of 2021
Basva Prabhu Patil, Sr. Adv., Amit Anand Tiwari, Ms. Shakun
Sharma, Kushagr Pandey, Ms. Devyani Gupta, B. Karunakaran, Anoop
Prakash Awasthi, S. Gowthaman, Advs. for the Appellant.
Ms. Aishwarya Bhati, ASG., Arvind Kumar Sharma, Advs. for
the Respondent.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J.
1. Leave granted.
2. These appeals arise out of judgment dated 6.01.2020 in Crl. A.
Nos. 1089, 1090 and 1091 of 2007 passed by the High Court of Judicature
at Madras ("High Court"). Since they involve common facts and question
of law, appeal arising out of S.L.P. (Crl.) No. 5102 of 2020 shall be
taken as the leading case.
3. The brief facts leading to this appeal are as follows:
3.1 The Appellant/Accused No. 1 was working as Regional
Manager (South) at Chennai with the Rashtriya Ispat Nigam Ltd. On
4.01.2001 case was registered against the Appellant under Section 120B
read with Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860
("IPC"); and Section 13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988 ("PC Act"). Subsequently, the officers of the
Respondent investigative agency conducted search at the Appellant's
residence on 24.01.2001 on the basis of search warrant issued by the
Special Judge, Tis Hazari Court, New Delhi. During the course of this
search, an amount of Rs. 79,65,900/- ("seized currency"), in addition to
jewellery and property papers, was seized from the Appellant's residence.
Since these assets were found to be disproportionate to the Appellant's
known sources of income, on 9.03.2001 a separate disproportionate assets
case was registered against him under Section 13(2) read with 13(1)(e)
of the PC Act. It is this case that forms the factual crux of the present
appeal.
3.2 During the course of investigation, Accused No. 2 V.S.
Krishnan (Appellant in the connected appeal arising out of S.L.P. (Crl.)
No. 6720 of 2020) and Accused No. 3 Murugesan (Appellant in the
A
B
C
D
E
F
G
H
1031
connected appeal arising out of S.L.P. (Crl.) No. 6327 of 2020) wrote
letter dated 4.02.2002 to the Superintendent of Police, CBI/ACU-II
claiming that the seized currency did not belong to the Appellant/Accused
No. 1. They contended that Accused No. 2 had entered into agreement
of sale dated 24.01.2001 to purchase properties from Accused No. 3,
for which a sum of Rs 80 lakhs was to be paid in advance. Since Accused
No. 2 was not available on that date for execution of the written
agreement, he had entrusted the seized currency, along with a duplicate
copy of the agreement signed by him, to the Appellant. The agreement
was to be executed by Accused No. 3 in the presence of Appellant.
However, since the Appellant's house was raided on that date, the money
could not be paid and the agreement of sale could not be executed.
Hence Accused Nos. 2 and 3 sought recovery of the seized currency.
Accused No. 2 produced the purported sale deed dated 24.01.2001
(in duplicate) typed out on stamp paper before the Investigating Officer
in support of their claim. He also produced certain books of accounts to
show that he had financial capacity to purchase the properties from
Accused No. 3, in which entry was made on 20.01.2001 pertaining to
payment of advance price of Rs 80 lakhs to Accused No. 3. However,
pertinently, the Appellant had not taken any such defence at the time of
search conducted in his house on 24.01.2001, nor had he produced the
duplicate sale deed before the officers of the Respondent agency at that
time.
3.3 Investigation conducted by the Respondent revealed that the
market value fixed by the State Government in respect of the two
properties described in sale deed dated 24.01.2001, was much below Rs
80 lakhs. Further, that the first property was equitably mortgaged with
the Tamil Nadu Mercantile Bank Ltd. since 4.9.1998; whereas a portion
of the second property had already been sold to other persons. That the
license of Accused No. 4 stamp vendor S. Mohankumar, through whom
the stamp papers of the sale deed were issued on 11.01.2001, was
cancelled on 7.10.1992. No stamp paper of any denomination had been
issued to him during the period of 1998 to 2001. Therefore, the
Respondent's claim is that the Appellant conspired with Accused Nos.
2-4 to fabricate false deed of agreement for sale for the purpose of
being shielded from legal action in the disproportionate assets case.
Accordingly, the Learned Additional Special Judge for CBI Cases,
Chennai ("Trial Court") framed charges against the Appellant and
Accused Nos. 2-4 under Section 120B read with Section 193 of the
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
1032
SUPREME COURT REPORTS
[2021] 2 S.C.R.
IPC, in addition to charges under the PC Act already framed against the
Appellant. Accused No. 4 died during the pendency of trial.
No objection was raised by the accused at the stage of taking of
cognizance. However, during the course of trial, the Accused argued
that complaint under Section 195(1)(b) of the Code of Criminal Procedure,
1973 ("CrPC") was necessary for prosecuting the case under Section
193, IPC. The Trial Court rejected this argument by referring to the
opinion of the Constitution Bench in Iqbal Singh Marwah and Another
v. Meenakshi Marwah and Another, (2005) 4 SCC 370. Furthermore,
based on the evidence on the record, the Trial Court found that it was
not proved that Accused No. 2 had entrusted the seized currency to the
Appellant for holding in escrow till completion of sale transaction by
Accused No. 3. Hence, the Trial Court convicted the Appellant under
Section 13(2) read with Section 13(1)(e) of the PC Act; as well as Sections
120B and 193 of the IPC, and sentenced him to rigorous imprisonment
for two years and payment of fine of Rs 1.5 lakhs. Accused Nos. 2 and
3 were convicted under Sections 120B and 193 of IPC and sentenced to
rigorous imprisonment for one year and payment of fine of Rs 1 lakh
each.
3.4 In appeal before the High Court, Accused Nos. 2 and 3
reiterated that the requirements of Sections 195(1)(b)(i) and 340 of the
CrPC were not complied with prior to framing of charge under Section
193, IPC. Therefore, framing of charge without conduct of inquiry and
making of written complaint by the Trial Court was illegal and without
jurisdiction. The High Court rejected this contention and held that the
procedure under Section 195(1)(b)(i) is only mandatory in offences which
directly affect administration of justice, i.e. pertaining to documents which
are custodia legis. Thus, the offence must be committed after a
document is produced in evidence before the Court. Therefore Sections
195(1)(b)(i) and 340, CrPC will not be applicable in the present case
where documents were fabricated during the investigative phase prior
to their production during before the Trial Court.
The High Court relied upon the decision of a three-Judge Bench
of this Court in Sachida Nand Singh and Another v. State of Bihar
and Another, (1998) 2 SCC 493, and the later Constitution Bench decision
in Iqbal Singh Marwah (supra) which affirmed the view taken in
Sachida Nand Singh, while laying down its opinion. Though these
decisions were rendered in the context of interpreting Section 195(1)(b)(ii)
A
B
C
D
E
F
G
H
1033
of the CrPC, the High Court held that Section 195(1)(b)(i) is analogous
to the former provision. Hence the observations made in the
aforementioned decisions are equally applicable to the present case. On
merits, the High Court confirmed the Trial Court's finding that the
Accused had conspired to fabricate false evidence for shielding Appellant/
Accused No. 1 from prosecution in the disproportionate assets case.
However, taking into consideration the advanced age of the Accused
and the long passage of time since taking of cognizance of the case, the
sentences awarded to the Accused were reduced. Nevertheless, the
Accused have come before us in the present appeals challenging the
impugned judgment of the High Court.
4. Learned senior counsel Mr. Basava Prabhu Patil, and learned
counsel Mr. Amit Anand Tiwari and Mr. B. Karunakaran appearing for
the Appellants/Accused, have forcefully argued that Section 195(1)(b)(i),
CrPC cannot be construed as analogous to Section 195(1)(b)(ii).
Therefore, the holding of the Constitution Bench in Iqbal Singh Marwah
(supra) will not be applicable to the present case. They have relied upon
Bandekar Brothers Pvt. Ltd. and Another v. Prasad Vassudev Keni
and Others, AIR 2020 SC 4247 in support of their contentions. Thus,
they have stressed that there is an absolute bar against taking of
cognizance for the offences specified under Section 195(1)(b)(i), CrPC
by any means except upon written complaint by the concerned Court.
This is even if the offence of giving false evidence under Section 193,
IPC was allegedly committed prior to proceedings before a Court of
law. Therefore, the prosecution lodged by the Respondent agency against
the Accused under Section 193, IPC is unsustainable.
4.1 Per contra, learned Additional Solicitor General appearing for
the Respondent, Ms. Aishwarya Bhati, has contended that the holding in
Iqbal Singh Marwah is applicable in respect of Section 195(1)(b)(i) of
the CrPC as well. She has also sought to distinguish Bandekar Brothers
(supra) and other decisions relied upon by the learned counsel for the
Appellants/Accused on the ground that these were rendered in the
particular facts of those cases, and will not apply to the present case.
5. Before we proceed further, we must first consider the relevant
provisions of Sections 195 and 340, CrPC.
"195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence.
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
1034
SUPREME COURT REPORTS
[2021] 2 S.C.R.
(1) No Court shall take cognizance-
(b)(i) of any offence punishable under any of the following sections
of the Indian Penal Code (45 of 1860), namely, sections 193 to
196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court,
or
(ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of the said 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,
or
(iii) of any criminal conspiracy to commit, or attempt to commit,
or the abetment of, any offence specified in sub-clause (i) or
sub-clause (ii), except on the complaint in writing of that Court or
by such officer of the Court as that Court may authorise in writing
in this behalf, or of some other Court to which that Court is
subordinate.
xxx
(3) In clause (b) of Sub-Section (1), the term "Court" means a
Civil, Revenue or Criminal Court, and includes a tribunal constituted
by or under a Central, provincial or State Act if declared by that
Act to be a Court for the purposes of this section."
(emphasis supplied)
It is well settled that Section 195(1)(b) creates a bar against taking
cognizance of offences against the administration of justice for the
purpose of guarding against baseless or vindictive prosecutions by private
parties. The provisions of this Section imply that the Court is the only
appropriate authority which is entitled to raise grievance in relation to
perjury, forgery of documents produced before the Court, and other
offences which interfere with the effective dispensation of justice by
the Court. Hence, it for the Court to exercise its discretion and consider
the suitability of making a complaint for such offences. However, there
is a pertinent difference in the wording of Section 195(1)(b)(i) and Section
195(1)(b)(ii) inasmuch as Section 195(1)(b)(ii) is restricted to offences
A
B
C
D
E
F
G
H
1035
which are committed in respect of a document which is "produced or
given in evidence in a proceeding in any court". Whereas Section
195(1)(b)(i) applies to offences against public justice which are committed
not only in any proceeding in any court, but also "in relation to" such
proceeding. Whether such semantical difference bars the analogous
application of precedents relating to Section 195(1)(b)(ii) for interpreting
Section 195(1)(b)(i) will be discussed by us later.
5.1 Section 340, CrPC prescribes the procedure to be followed
for recording a complaint under Section 195(1)(b):
"340. Procedure in cases mentioned in section 195.-(1)
When upon an application made to it in this behalf or otherwise
any Court is of opinion that it is expedient in the interest of justice
that an inquiry should be made into any offence referred to in
clause (b) of Sub-Section (1) of section 195, which appears to
have been committed in or in relation to a proceeding in that Court
or, as the case may be, in respect of a document produced or
given in evidence in a proceeding in that Court, such Court may,
after such preliminary inquiry, if any, as it thinks necessary;
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused
before such Magistrate, or if the alleged offence is non-bailable
and the Court thinks it necessary so to do send the accused in
custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such
Magistrate.
xxx
(4) In this section, "Court" has the same meaning as in section
195."
At this juncture, it is relevant to note that a Bench of this Court
(consisting of one of us) in State of Punjab v. Jasbir Singh, (2020) 12
SCC 96, has referred the question of whether it is mandatory for the
Court to conduct a preliminary inquiry and provide opportunity of hearing
to the would-be-accused under Section 340, CrPC prior to making a
BHIMA RAZU PRASAD v. STATE, REP. BY DEPUTY SUP. OF POLICE
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
1036
SUPREME COURT REPORTS
[2021] 2 S.C.R.
complaint under Section 195, for consideration of a larger Bench.
Therefore, we shall be limiting our findings to the issue of whether written
complaint by the Trial Court was required under Section 195(1)(b)(i),
CrPC in the present case, without delving extensively into the aspect of
whether preliminary inquiry was required to be conducted prior to such
complaint.
5.2 We also find it necessary to consider Sections 192 and 193 of
the IPC for the purpose of deciding this matter. Both fall under Chapter
XI, under the heading "Of False Evidence and Offences Against Public
Justice", of the IPC.
"192. Fabricating false evidence. Whoever causes any
circumstance to exist or makes any false entry in any book or
record, or electronic record or makes any document or electronic
record 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".
xxx
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...
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."
In the present case, the allegation against Accused Nos. 2 and 3
is that they colluded with Appellant/Accused No. 1 to create a false sale
deed, and gave false explanation of escrow arrangement amongst the
three parties, to justify how the seized currency came to be in the
A
B
C
D
E
F
G
H
1037
Appellant's possession. This was done to exonerate the Appellant/
Accused No. 1 and recover the seized currency at the stage of
investigation itself, which is deemed to be "a stage of a judicial
proceeding" under Explanation 2 of Section 193. Had the genuineness
of the sale deed been accepted, the Respondent may have erroneously
opined that the seized currency belonged to Accused No. 2, and
consequently abandoned proceedings under Section 13(1)(e), PC Act
against the Appellant. Therefore Section 193, IPC is squarely applicable
to the allegations at hand.
6.