KISHOREBHAI GANDUBHAI PETHANI v. STATE OF GUJARAT & ANR.

# [2013) 10 S.C.R. 208 A ## KISHOREBHAI GANDUBHAI PETHANI _v._ STATE OF GUJARAT & ANR. (Criminal Appeal No. 1451 of 2013) B SEPTEMBER 20, 2013 [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.) - - _Code of Criminal Procedure, 1973 ss. 1951340 Applicability of_ - _Held: If documents have been forged and_ C _fabricated prior to filing of those documents in the Court, provisions of ss. 1951340 are not attracted._ On the basis of evidence of a witness in a criminal case against the appellant that some manipulation had 0[been done ][by ][the ][appellant ][in ][medical ][report, ][the ] complainant lodged a complaint u/ss. 463, 465, 468, 471 and 114 IPC in respect of the tampering with the medical report. Appellant's application u/s.482 Cr.P.C. for quashing the complaint, was dismissed by High Court, E rejecting the contention of the appellant that such a complaint was not maintainable unless it was made by the Court itself under the provisions of s.195 Cr.P .C. Hence the present appeal. ## Dismissing the appeal, the Court F > HELD: 1. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a G cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with H 208 ## KISHOREBHAI GANDUBHAI PETHANI _v._ STATE OF 209 GUJARAT seriously as it is necessary for the working of the court as well as for the benefit of the public at large. [Para 7) [213-C-D] A _Mohan Singh vs. Late Amar Singh (through LR's)_ AIR -- 1999 SC 482: 1998 (1) Suppl. SCR 252 relied on. B 2. In the instant case, the documents had been forged and fabricated. The manipulation, if any, had been made prior to filing of those documents in the court. Therefore, in such a fact-situation, provisions of Sections 195 and 340 Cr.P.C. are not attracted. Therefore, no fault c can be found with the impugned judgment rendered by the High Court. The facts and circumstances of the case do not warrant any interference. [Paras 8 and 14] [213-DE; 217-C] _Iqbal Singh Marwah and Anr. vs. Meenakshi Marwah and Anr._ AIR2005 SC 2119: 2005 (2) SCR 708 - followed. _Ram Ohan vs. State of U.P. and Anr._ AIR 2012 SC 2513: 2012 (3) SCR 1059; _Sachida Nand Singh and Anr. vs. State of Bihar and Anr._ (1998) 2 SCC 493: 1998 (1) SCR 492; _P. Swaroopa Rani vs. M. Hari Narayana_ @ _Hari Babu_ AIR 2008 SC 1884: 2008 (3) SCR 900; _Mahesh Chand Sharma vs. State of U. P. and Ors._ AIR 2010 SC 812: 2009 (13) SCR 922; _C. Muniappan and Ors. vs. State of Tamil Nadu._ AIR 2010 SC 3718: 2010 (10) SCR 262; _Institute of Chartered Accountants of India vs. Vimal Kumar Surana and Anr._ (2011) 1 SCC 534: 2010 (14) SCR 248; _C.P. Subhash vs. Inspector of Police Chennai and Ors._ JT (2013) 2 SC 270: 2013 SCR 545; _Rugmini Ammal (Dead by L.Rs.) vs. V. Narayana Reddiar and Ors._ AIR 2!108 SC 895: 2007 (13) SCR 587 - relied on. D E F G _M._ S. _Ahlawat vs. State of Haryana and Anr._ AIR 2000 SC 168: 1999 (4) Suppl. SCR 160 - referred to. ## Case Law Reference: 1999 (4) Suppl. SCR 160 referred to Para 3 H 210 SUPREME COURT REPORTS [2013] 10 S.C.R. A B c D |1998 (1) Suppl. SCR 252|1998 (1) Suppl. SCR 252|relied on|Para 6| |---|---|---|---| |2005 (2) SCR 708|2005 (2) SCR 708|followed|Para 10| |2012 (3) SCR 1059|2012 (3) SCR 1059|relied on|Para11| |1998 (1) SCR 492|1998 (1) SCR 492|relied on|Para11| |2008 (3) SCR 900|2008 (3) SCR 900|relied on|Para 12| |2009 (13) SCR 922|2009 (13) SCR 922|relied on|Para 12| |2010 (10) SCR 262|2010 (10) SCR 262|relied on|Para 12| |2010 (14) SCR 248|2010 (14) SCR 248|relied on|Para 12| |2013|2013SCR545|relied on|Para 12| |2007 (13) SCR 587|2007 (13) SCR 587|relied on|Para 12| CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1451 of 2013. From the Judgment and Order dated 12.09.2011 of the High Court of Gujarat at Ahmedabad in CRMA No. 3213 of E 2011. Sushil Kumar Jain, Puneet Jain, Chhaya Kirti, Chisti Jain, Pratibha Jail') for the Appellant. Nirav C. Thakkar, Mohit D. Ram, Hemantika Wahi for the F Respondents. The Judgment of the Court was delivered by DR. B.S. CHAUHAN, J. 1. This criminal appeal has been G preferred against the judgment and order dated 12.9.2011, passed by the High Court of Gujarat in Criminal Misc. Application No.3213 of 2011 dismissing the appellant's application for quashing the complaint lodged by the respondent No.2 being ICR No.180 of 2010 dated 5.7.2010 under Sections 463, 465, 468, 471 and 114 of the Indian Penal Code 1860 H (hereinafter referred to as 'IPC'). • KISHOREBHAI GANDUBHAI PETHANI _v._ STATE OF 211 GUJARAT [DR. B.S. CHAUHAN, J.] 2. Facts and circumstances giving rise to this appeal are A fu~ . A. A complaint bearing ICR No.271 of 2003 was lodged by respondent no.2 before Madhavpura Police Station for the offences punishable under Sections 323, 324, .294A. 506(2) 8 and 114 IPC read with Section 135(1) of the Bombay Police Act, 1951, naming the appellant and one other individual. Subsequently, considering the nature of injuries, Section 307 IPC was also added and the chargesheet was submitted after having investigated with respect to the said offences wherein the appellant as well as his wife had been arrayed as accused. C After committal of the case to the learned Sessions Court, the Sessions Case No.175 of 2007 is being tried. B. During the hearing of the Sessions Case No.175 of 2007, the prosecution examined one Dr. Ghanshyam Chunilal o Patel (PW.3) on 12.5.2010, wherein he deposed that he had treated the complainant and also produced a copy of the injury certificate, Exh.105. It was alleged that some portion of the documents produced by the said witness had been tampered with and as the appellant herein had been a beneficiary of the E same, it was suggested that some manipulation had been done by the appellant. Thus, the complainant filed an application to enquire into the matter of tampering with the medical report. C. An application for cancellation of bail was also filed alleging that the appellant had tampered with the documents produced before the Sessions Court for obtaining the bail. F D. Subsequent thereto, a complaint was lodged on 5.7.2010 being FIR No.180 of 2010 under Sections 463, 465, G 468, 471 and 114 IPC in respect of tampering with the aforesaid medical report. E. The appellant filed Criminal Misc. Application No.3213 of 2011 under Section 482 of Criminal Procedure Code 1973 H ## 212 SUPREME COURT REPORTS [2013] 10 S.C.R. A (hereinafter referred to as 'Cr.P.C.') to quash the complaint lodged before Shahibaug Police Station being ICR No.180 of 2010. The High Court dismissed the said application rejecting the contention of the appellant that such a complaint was not maintainable unless it is made by the court itself under the provisions of Section 195 Cr.P.C. 8 ## Hence, this appeal. 3. Shri Sushi! Kumar Jain, learned senior counsel for the appellant submitted that it is a settled legal proposition that in C view of the provisions of Sections 195/340 Cr.P.C. where the forgery is alleged to have been made in the court, the complaint is not maintainable unless it is made by the court itself. In support of this proposition, he has placed a very heavy reliance upon the judgment of this Court in _M.S. Ahlawat v. State of_ o _Haryana_ & _Anr.,_ AIR 2000 SC 168. It has been submitted that the appeal deserves to be allowed and the complaint is liable to be quashed. 4. On the contrary, Shri Nirav C. Thakkar, learned counsel appearing for respondent no.2 and Ms. Hemantika Wahi, E learned counsel for the State, have submitted that in case the documents have been forged outside the court before being filed and relied upon in the court proceedings, the provisions of Section 195 Cr.P.C. are not attracted. To buttress their case, they have placed reliance on the judgment of this Court in _Iqbal_ F _Singh Marwah_ & _Anr. v. Meenakshi MariNah_ & _Anr.,_ AIR 2005 SC 2119. It has been suggested by them that the appeal lacks merit and is liable to be dismissed. > 5. We have considered the rival submissions made by G learned counsel for the parties and perused the record. 6. In _Mohan Singh v. Late Amar Singh_ (through LR's), AIR 1999 SC 482, while dealing with a case of perjury, this Court held as under: H _" ..... Tampering with the record of judicial proceedings and_ KISHOREBHAI GANDUBHAI PETHANI _v._ STATE OF 213 GUJARAT [DR. S.S. CHAUHAN, J.] _filing of false affidavit, in a Court of law_ has _the tendency_ A _of causing obstruction in the due course of justice. It undermines and obstructs free flow of unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice_ has _to be kept clear and pure and no one can be permitted to take liberties with it by soiling_ B _its purity ..... "_ 7. Perjury is an obstruction of justice. Deliberately makirig false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large. C D 8. In the instant case, admittedly, the documents had been forged and fabricated. The manipulation, if any, had been made prior to filing of those documents in the court. Therefore, the question arises whether in such a fact-situation, provisions of Sections 195 and 340 Cr.P.C. are attracted. E . 9. In M.S. _Ahlawat_ (supra), this Court held as under: _"5. Chapter XI /PC deals with "false evidence and offences against public justice" and Section 193 occurring_ F _therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public_ G _justice such_ as _giving false evidence under Section 193 /PC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence_ was _committed may initiate proceedings._ H 214 SUPREME COURT REPORTS [2013] 10 S.C.R. A _Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incoffect or false statement does not make it_ B _incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice._ c D E _6. Section 340 CrPC pre.scribes the procedure as to how_ a _complaint may be prefeffed under Section 195 CrPC. While under Section 195 CrPC it is open to the court before which the offence was committed to prefer_ a _complaint for the prosecution of the offender, Section 340 CrPC prescribes the procedure_ as _to how that complaint may be preferred. Provisions under Section 195 CrPC are mandatory and no court can take cognizance of offences referred to therein (sic). It is in respect of such offences the court has jurisdiction to proceed under Section 340 CrPC and a complaint outside the provisions of Section 340 CrPC cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction. n_ 10. However, a Constitution Bench of this Court in _Iqbal Singh Marwah_ (supra) after considering a large number of F judgments on the issue held as under: G H _"23. That apart, the section which we are required to interpret is not_ a _penal provision but is part of a procedural law, namely, the Code of Criminal Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates_ a _bar against taking cognizance of an offence in certain specified situations except upon complaint by court. A penal statute is one upon which an action for penalties can be brought by_ a _public officer or by_ a _person aggrieved and_ a _penal Act in its wider sense includes every statute creating an_ KISHOREBHAI GANDUBHAI PETHANI _v._ STATE OF 215 GUJARAT [DR. B.S. CHAUHAN, J.] I _offence against the State, whatever is the character of the_ A _penalty for the offence. The principle that_ a _penal statute should be strictly construed, as projected by the teamed counsel for the appellants can, therefore, have no application here._ B _xx xx xx xx_ _25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when_ C _the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was In custodia legis._ D D _26. In the present case, the Will has been produced in the court subsequently. It_ is _nobody's case that any offence as enumerated in Section 195(1 )(b)(ii)_ was _committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not_ come _into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents ..... "_ E F (Emphasis added) > 11. This Court in _Ram Ohan v._ State _of U.P._ & _Anr.,_ AIR 2012 SC 2513 considered this very aspect of the matter and G relying upon the earlier judgment of this Court in _Sachida Nand Singh_ & _Anr. v._ State _of Bihar_ & _Anr.,_ (1998) 2 sec 493 came > to the conclusion that if the fabrication of false evidence takes place or the document is tampered with before filing in court, > the provisions of Section 195 Cr.P.C. would not be attracted. H H 216 SUPREME COURT REPORTS [2013) 10 S.C.R. - A It is only when the document is tampered with after filing in court then the bar provided in Section 195 Cr.P.C. would be attracted. 12. A similar view has been reiterated on the issue by this B Court in _P. Swaroopa Rani v. M. Hari Narayana@_ Hari Babu, AIR 2008 SC 1884; _Mahesh Chand Sharma v. State of U. P._ & _Ors.,_ AIR 2010 SC 812; C. _Muniappan_ & _Ors. v. State of T. N.,_ AIR 2010 SC 3718; Institute of Chartered Accountants of India v. Vimal Kumar Surana & Anr., (2011) 1 SCC 534; and C _C.P. Subhash v. Inspector of Police Chennai_ & _Ors.,_ JT (2013) 2 SC 270. 13. This Court while considering the issue in _Rugmini Ammal_ (Dead by L.Rs.) _v. V. Narayana Reddiar_ & _Ors.,_ AIR 2008 SC 895 reiterated a similar view while placing reliance D upon _Sachida Nand Singh_ (Supra) explaining as under: E F G _"25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh 2 after preparing_ a _forged document or committing an act of forgery,_ a _person may manage to get_ a _proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of_ a _private party or the police until the court, where the document has been filed, itself chooses to file_ a _complaint. The litigation may be_ a _prolonged one due to which the actual trial of such_ a _person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large._ H _26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of_ a _criminal_ KISHOREBHAI GANDUBHAI PETHANI _v._ STATE OF 217 GUJARAT [DR. B.S. CHAUHAN, J.] " _complaint and such_ a _course is rarely adopted. It will not_ A _be fair and proper to give an interpretation which leads to_ a _situation where_ a _person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of_ a _complaint or if_ a _complaint is filed, the same does not_ B _come to its logical end. Judging from such an angle will be in consonance with the· principle that an unworkable or impracticable result should be avoided ..... "_ 14. In view of the above, we do not hesitate to hold that C no fault can be found with the impugned judgment rendered by the High Court. The facts and circumstances of the case do not warrant any interference. The appeal lacks merit and is ·accordingly dismissed. K.K.T. Appeal dismissed. D