Bar Under Sec. 195 CrPC Not Attracted When High Court Has Directed Investigation Into Alleged Tampering : Supreme Court

While directing restoration of the criminal proceedings against Kerala MLA Antony Raju in an evidence tampering case, the Supreme Court today held that the bar on taking of cognizance under Section 195(1)(b) CrPC was not attracted in the case, as the proceedings were initiated against Raju pursuant to a judicial order.

"the initiation of the present proceedings in the present case, was from the judgment and order dated 5th February, 1991 of the Kerala High Court in Criminal Appeal No. 20 of 1991, in acquitting Andrew Salvatore directing the matter of planting of Mo2 be positively looked into. This was followed by an investigation by the vigilance officer of the Court. Therefore, in the impugned order, the High Court has erroneously observed that there is no judicial order concerning the present proceedings", observed a bench of Justices CT Ravikumar and Sanjay Karol.

The judgment, authored by Justice Karol, quoted from CBI v. Sivamani (2017) as follows: "Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service".

Factual Background

Briefly stated, Raju, a junior lawyer in 1990, was accused of tampering with underwear evidence in a drugs case, where the accused was acquitted but the Kerala High Court directed that the matter of planting of tinkered evidence (pursuant to a criminal conspiracy between Raju and a clerk) be looked into. A case was registered on the allegations that the clerk handed over the underwear procured as evidence to Raju, who made alterations to it (so it would not fit the drugs case accused) and returned it into custody.

In 2006, the chargesheet was filed in the case. Eventually, the Judicial First Class Magistrate took cognizance thereof. In 2022, the clerk and Raju filed separate petitions before the High Court for quashing of the criminal proceedings, claiming that cognizance could not have been taken by the JFCM as there was a bar under Section 195(1)(b) CrPC. These petitions were allowed by the High Court and the criminal proceedings quashed, however, de novo steps were directed to be taken based on the allegations raised.

Assailing the High Court order, Raju and one MR Ajayan (Editor, Green Kerala News) approached the Supreme Court. One of the issues placed before the Court was whether Section 195(1)(b) CrPC, which puts embargo on taking of cognizance in certain situations (except upon complaint by a Court), was attracted to the case. This provision reads thus:

“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance—

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(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, section 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 authorize in writing in this behalf, or of some other Court to which that Court is subordinate."

Court Observations

Going through judicial precedents, the Court noted that to attract the bar under Section 195(1)(b), the offence should have been committed when the document was in “custodia legis” or in the custody of the Court concerned. Further, High Courts can exercise jurisdiction and power enumerated under Section 195 on an application being made to it or suo-motu, whenever the interest of justice so demands. In such a case, where the High Court as a superior Court directs a complaint to be filed in respect of an offence covered under Section 195(1)(b)(i), the bar for taking cognizance, will not apply.

On facts of the case, it was observed that the proceedings against Raju emanated from a letter written by the Kerala High Court and by District Judge, Trivandrum, and not the complaint of a private individual. As such, the bar under Section 195(1)(b) CrPC was not attracted.

The top Court further found itself in disagreement with the High Court's observation that chargesheet in the present case came to be filed in response to an administrative order, and not a judicial order.

"Furthermore, on a perusal of the judgment of this Court in Sivamani (supra) and the statutory provision, there is no distinction between a judicial or administrative order by a “Court to which that Court is subordinate", it said.

Insofar as it was Raju's contention that the High Court could not have ordered a de novo trial against him, the top Court held that the High Court could not be faulted for passing the direction, given the attending circumstances. In this regard, the following observation from Sunita Devi v. State of Bihar & Anr. was quoted:

"An Appellate Court has got ample power to direct re-trial. However, such a power is to be exercised in exceptional cases. The irregularities found must be so material that a re-trial is the only option. In other words, the failure to follow the mandate of law must cause a serious prejudice vitiating the entire trial, which cannot be cured otherwise, except by way of a re-trial."

Notably, an issue regarding MR Ajayan's locus to challenge the High Court order had also arisen in the matter. On the said aspect, drawing from the decision in Naveen Singh v. State of U.P., the top Court said that Ajayan's locus could not come in the way of its checking the correctness of the approach adopted by the High Court, especially as the matter involved allegation of interference with judicial process.

"the locus standi of the appellant in SLP(Crl.)No.4887 of 2024, does not come in the way of this Court hearing the same. The case at hand, which has been quashed by the High Court, involves serious allegations of interference with judicial processes which strike at the very foundation of both dispensation and the administration of justice. Therefore, the first issue is answered in the affirmative as it is incumbent upon this Court to check the correctness of the approach adopted by the High Court, and the locus of the appellant would not come in the way of the same."

Case Title: MR AJAYAN v. THE STATE OF KERALA AND ORS., SLP(Crl) No. 4887/2024 (and connected case)

Citation : 2024 LiveLaw (SC) 905

Click here to read the judgment

Also Read - S.195 CrPC Bar Not Applicable When Forgery Was Committed On Document Before It Was Given As Evidence In Court : Supreme Court