Section 195(1)(b)(i) CrPC Does Not Bar Prosecution By Investigating Agency For Offence U/s193 IPC Committed During Investigation Stage

The Supreme Court held that the prosecution by the investigating agency for offence punishable under Section 193 IPC [for fabricating false evidence] committed during the stage of investigation will not be barred under Section 195(1)(b)(i) CrPC if the investigating agency has lodged complaint or registered the case prior to commencement of proceedings and production of such evidence before the Trial Court.

In such circumstance, the said offences  would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i), CrPC, the  bench comprising Justices Mohan M. Shantanagoudar and Vineet Saran observed.

In this case, the first accused was being investigated in a corruption and disproportionate assets case. During the course of investigation, the second and third accused wrote letter to the Superintendent of Police, CBI/ACU­II claiming that the seized currency did not belong to the first accused. They stated in the letter that Accused No. 2 had entered into agreement of sale to purchase properties from Accused No. 3, for which a sum of Rs 80 lakhs was to be paid in advance. That 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 first accused. Investigation in this regard, revealed that the accused fabricated false deed of agreement for sale for the purpose of being shielded from legal action in the disproportionate assets case. CBI Court  framed charges against the accused under Section 120B read with Section 193 of the IPC, in addition to charges under the PC Act already framed against the accused. 

During the course of trial, the Accused argued that complaint under Section 195(1)(b) CrPC was necessary for prosecuting the case under Section 193, IPC. This contention was rejected by the Trial Court which convicted the accused under Section 13(2) read with Section 13(1)(e) of the PC Act; as well as Sections 120B and 193 of the IPC. The High Court, upholding this order of the Trial Court observed that 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 issue raised by the accused-appellant before the Apex Court was whether Section 195(1)(b)(i), CrPC bars lodging of case by the investigating agency under Section 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? To answer this, the bench considered these two issues: Whether an offence under Section 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 under Section 195(1)(b)(i), CrPC? 6.2 Whether the words "stage of a judicial proceeding" under Explanation 2 to Section 193, IPC can be equated with "proceeding in any court" under Section 195(1)(b)(i), CrPC?

The contention of the accused was 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 even if the offence of giving false evidence under Section 193, IPC was allegedly committed prior to proceedings before a Court of law. According to them, Section 195(1)(b)(i), CrPC cannot be construed as analogous to Section 195(1)(b)(ii) and therefore, the holding of the Constitution Bench in Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another, (2005) 4 SCC 370 will not be applicable to the present case. [In Iqbal Singh Marwah, it was held that Section 195(1)(b)(ii) CrPC would be attracted only when 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.]

The bench, referring to various decisions in this regard, observed thus:

"In case the bar under Section 195(1)(b)(i) is applied to offences committed during the course of investigation, the Court may think it fit to wait till the completion of trial to evaluate whether a complaint should be made or not. Subsequently, the Court may be of the opinion that in the larger scheme of things the alleged fabrication of evidence during investigation has not had any material impact on the trial, and decline to initiate prosecution for the same. 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 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, we are 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.

 It must be clarified that the aforementioned opinion expressed by us is limited to factual situations such as the present case wherein the fabricated evidence has been detected prior to commencement of the trial, or without such trial having been initiated in the first place. The same may not apply for example, where the investigation agency on the basis of false evidence given by a third party happens to wrongfully implicate a person, other than the real perpetrator, for a particular offence. Subsequently, the Court during the course of trial proceedings may take judicial notice of such defect in the investigation process and make a complaint under Section 195(1)(b)(i), CrPC. Since by this stage, the evidence has been produced before the Court, and contains potential for directly impacting the formation of the Court's opinion on the innocence or guilt of the accused person, invoking the bar under Section 195(1)(b)(i) may not give rise to much difficulty. However, at this juncture, we decline to make any conclusive finding on this aspect, as the facts of the present appeal do not require us to consider the same. It is left open to future Benches of this Court to settle this issue if it so arises before them."

Answering the second issue, the bench observed thus:

"It can be seen from the above discussion that this Court has, in some instances, opined that where the law deems proceedings before a certain authority to be "judicial proceedings", the same would be considered as "proceedings in any court" under Section 195(1)(b)(i), CrPC. Therefore, if the offence under Section 193, IPC is committed before such an authority, the written complaint of that authority is mandatorily required for trial of the offence. However, the facts of the decisions in Lalji Haridas (supra), Babita Lila (supra) and Chandrapal Singh (supra), are clearly distinguishable from the present appeal as they all involve 1) False statements made on oath or in affidavits, 2) in a judicial proceeding and 3) before an authority which is expressly deemed under law to be a "court". None of the afore quoted cases were concerned with fabrication of evidence before an investigating authority under a penal statute."

"Neither was the fabricated evidence in the present case given on oath before the investigating officer, nor is the investigating authority under the PC Act deemed to be a "court" for the purpose of Section 195(1) (b), CrPC. Hence, the decisions in Lalji Haridas (supra) and Chandrapal Singh (supra) will have no applicability to the present case. Thus, it can be concluded that the investigation conducted by the Respondent under the PC Act cannot be equated with a proceeding in a court of law under Section 195(1) (b)(i), CrPC, though it is deemed to be a stage of a judicial proceeding under Section 193, IPC."

Dismissing the appeal, the bench answered the question of law thus:

Section 195(1)(b)(i), CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193, IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 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 Section 195(1)(b)(i), CrPC.

Case:  Bhima Razu Prasad vs. State [S.L.P. (Criminal) No. 5102 of 2020]
Coram: Justices Mohan M. Shantanagoudar and Vineet Saran
Counsel: Sr. Adv Basava Prabhu Patil, Adv Amit Anand Tiwari, Adv B. Karunakaran, ASG Aishwarya Bhati
Citation: LL 2021 SC 159

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