SC: S.460, CrPC cannot, and does not, apply to cases in which S.195, CrPC is involved

The Hon’ble Supreme Court. on 2nd September 2020, in the matter of M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni, etc. etc.  pronounced that Section 460 of the CrPC cannot, and does not, apply to cases in which Section 195 of the CrPC is involved inasmuch as Section 195 of the CrPC is an exception to Section 190 of the CrPC, and is an absolute bar to taking cognizance of the offences mentioned therein, unless the drill followed in Section 340 of the CrPC is observed.

The Hon’ble Supreme Court observed that:

Under Section 340 of the CrPC, the procedure in cases mentioned in Section 195 of the CrPC is set out. The Court may make a preliminary enquiry if it thinks necessary, and then record a finding to the effect that the provisions of Section 195(1)(b) of the CrPC are attracted, as a result of which the Court itself is then to make a complaint in writing, and send it to a Magistrate of the first class having jurisdiction. Where the Court declines to make any such complaint, an appeal is provided under Section 341 of the CrPC. The appellate power of the Court under Section 341 can also be invoked, insofar as a complaint has been made under Section 340, by the person so aggrieved. By Section 341(2), the appellate order shall be final and shall not be subject to revision. Finally, a Magistrate to whom a complaint is made under these sections shall proceed to deal with the case as if it were instituted on a police report – vide Section 343(1). (Para 12)

It is important to understand the difference between the offences mentioned in Section 195(1)(b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies. What is important is that once these sections of the IPC are attracted, the offence should be alleged to have been committed in, or in relation to, any proceeding in any Court. Thus, what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court. (Para 19)

Contrasted with Section 195(1)(b)(i), Section 195(1)(b)(ii) of the CrPC speaks of offences described in Section 463, and punishable under Sections 471, 475 or 476 of the IPC, when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. What is conspicuous by its absence in Section 195(1)(b)(ii) are the words “or in relation to”, making it clear that if the provisions of Section 195(1)(b)(ii) are attracted, then the offence alleged to have been committed must be committed in respect of a document that is custodia legis, and not an offence that may have occurred prior to the document being introduced in court proceedings. (Para 22)

When Section 195(1)(b)(i) of the CrPC is attracted, the ratio of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370, which approved Sachida Nand Singh and Anr. v. State of Bihar and Anr. (1998) 2 SCC 493, is not attracted, and that therefore, if false evidence is created outside the Court premises attracting Sections 191/192 of the IPC, the aforesaid ratio would not apply so as to validate a private complaint filed for offences made out under these sections. (Para 33)

Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 of the CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) of the CrPC must be followed. (Para 44)

The “First” category of Section 464 makes it clear that anyone who dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, can be said to make a false document. (Para 47)

Assuming dishonesty or fraud, the second ingredient of the “First” category of Section 464 is that the document itself must be made by or by the authority of a person by whom or by whose authority the person who creates the forgery knows that it was not made. If the second ingredient is found missing, the offence of forgery is not made out at all. (Para 47)

Section 460(e) of the CrPC is only attracted if a Magistrate, “not empowered” by law to take cognizance of an offence under clause (a) of Section 190(1) of the CrPC, takes such cognizance erroneously, but in good faith. The “empowerment” spoke of is the jurisdiction of the Magistrate to proceed with the complaint. Section 460 of the CrPC cannot, and does not, apply to cases in which Section 195 of the CrPC is involved inasmuch as Section 195 of the CrPC is an exception to Section 190 of the CrPC, and is an absolute bar to taking cognizance of the offences mentioned therein, unless the drill followed in Section 340 of the CrPC is observed. (Para 58)

Copy of judgement: Judgement_02-Sep-2020

-Adv. Tushar Kaushik

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