Criminal Appeal No.336-SBA of 2008 -1-
****
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.336-SBA of 2008
Date of decision : 18.12.2008
Ramesh Chand
.....Appellant
Versus
Kailash Mangal ...Respondent
****
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. Amar Vivek, Advocate for the appellant
None for the respondent.
S. D. ANAND, J.
The petitioner-complainant had filed a complaint under
Sections 416, 419, 191, 192 and 193 IPC against the respondent/accused
on the allegations which may be indicated as under:-
The parties are real brothers inter-se. In the course of the
Civil Suit No. 181 of 1987 titled (Surender Kumar Vs. Smt. Champa Devi),
which was pending in the Court of the then learned Sub Judge Ist Class,
Tohana, respondent/accused had filed an affidavit dated 15.12.1990
containing averments found to be false. On that finding, the learned Trial
Magistrate convicted the respondent/accused for the offences under
Sections 193/419 IPC, vide judgment dated 11.10.2004.
In appeal, the learned Sessions Judge, Fatehabad, reversed
the finding by holding that the affidavit had been filed in the course of
judicial proceedings, a prosecution in that respect could be competent only
Criminal Appeal No.336-SBA of 2008 -2-
****
if a complaint in the relevant behalf was made by the concerned Court in
accordance with the procedure indicated under Section 340 Cr.P.C.
The complainant/petitioner is in revision against that order.
I have heard Mr. Amar Vivek, learned counsel appearing on
behalf of the appellant and have carefully gone through the record.
None turned up on behalf of respondent to assist this Court.
It is apparent from the record that affidavit dated 15.12.1990
had been sworn by respondent/accused prior to its presentation before the
Court of the then learned Sub Judge Ist Class, Tohala. It is, thus, not a
case where the false evidence had been given during the time the
document was in custodia-legis. A similar controversy came up for
consideration before the Apex court in Iqbal Singh Marwah and another
Vs. Meenakshi Marwah and another 2005 AIR (SC) 2119. In that case,
the Apex Court recorded the following observations:-
“9. The scheme of the statutory provision may now be
examined. Broadly, Section 195, Cr.P.C. deals with three
distinct categories of offences which have been described in
clauses (a), (b) (i) and (b)(ii) and they relate to (1) contempt of
lawful authority of public servants, (2) offences against public
justice, and (3) offences relating to documents given in
evidence. Clause (a) deals with offences punishable under
Sections 172 to 188, IPC which occur in Chapter X of the IPC
and the heading of the Chapter is – ‘Of Contempts of The
Lawful Authority of Public Servants’. These are offences which
directly affect the functioning of or discharge of lawful duties of
a public servant. Clause (b)(i) refers to offences in Chapter XI
of IPC which is headed as – ‘Of False Evidence And Offences
Against Public Justice’. The offences mentioned in this clause
Criminal Appeal No.336-SBA of 2008 -3-****
clearly relate to giving or fabricating false evidence or makinga false declaration in any judicial proceeding or before a Court
of justice or before a public servant who is bound or
authorized by law to receive such declaration, and also to
some other offences which have a direct correlation with the
proceedings in a Court of justice (Sections 205 and 211, IPC).
This being the scheme of two provisions or clauses of Section
195, viz., that the offence should be such which has direct
bearing or affects the functioning or discharge of lawful duties
of a public servant or has a direct correlation with the
proceedings in a court of justice, the expression “when such
offence is alleged to have been committed in respect of a
document produced or given in evidence in a proceeding in a
Court” occurring in clause (b)(ii) should normally mean
commission of such an offence after the document has
actually been produced or given in evidence in the Court. The
situation or contingency where an offence as enumerated in
this clause has already been committed earlier and later on
the document is produced or is given in evidence in Court,
does not appear to be in tune with clauses (a)(i) and (b)(i) and
consequently with the scheme of Section 195, Cr.P.C. This
indicates that clause (b)(ii) contemplates a situation where the
offences enumerated therein are committed with respect to a
document subsequent to its production or giving in evidence in
a proceeding in any Court.
10. Section 195(1) mandates a complaint in writing of the
Court for taking cognizance of the offences enumerated in
clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341, Cr.P.C.
Criminal Appeal No.336-SBA of 2008 -4-
****
which occur in Chapter XXVI give the procedure for filing of thecomplaint and other matters connected therewith. The heading
of this Chapter is – ‘Provisions As to Offences Affecting The
Administration of Justice’. Though, as a general rule, the
language employed in a heading cannot be used to give a
different effect to clear words of the Section where there
cannot be any doubt as to their ordinary meaning, but they are
not to be treated as if they were marginal notes or were
introduced into the Act merely for the purpose of classifying
the enactments. They constitute an important part of the Act
itself, and may be read not only as explaining the Sections
which immediately follow them, as a preamble to a statute may
be looked to explain its enactments, but as affording a better
key to the constructions of the Sections which follow them than
might be afforded by a mere preamble. (See Craies on Statute
Law, 7th Ed. Pages 207, 209). The fact that the procedure for
filing a complaint by Court has been provided in Chapter XXVI
dealing with offences affecting administration of justice, is a
clear pointer of the legislative intent that the offence committed
should be of such type which directly affects the administration
of justice, viz., which is committed after the document is
produced or given in evidence in Court. Any offence committed
with respect to a document at a time prior to its production or
giving in evidence in Court cannot, strictly speaking, be said to
be an offence affecting the administration of justice.
xxx xxxx xxxx
“25. In view of the discussion made above, we are of the
opinion that Sachida Nand Singh has been correctly decided
Criminal Appeal No.336-SBA of 2008 -5-****
and the view taken therein is the correct view. Section 195(1)
(b)(ii), Cr.P.C. 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.
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(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), Cr.P.C. 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. The view
taken by the learned Additional Sessions Judge and the High
Court is perfectly correct and calls for no interference.”
The judicial pronouncement aforementioned applies squarely
to the facts and circumstances of the present case.
In the light of the fore-going discussion, the impugned order
passed by the learned Sessions Judge, Fatehabad, cannot be sustained,
The appeal shall stand allowed. The impugned order dated 6.3.2007 shall
stand set aside. The finding of indictment recorded by the learned Trial
Magistrate shall stand restored.
December 18, 2008 (S. D. ANAND) Pka JUDGE