PETITIONER: SANTOKH SINGH Vs. RESPONDENT: IZHAR HUSSAIN AND ANR. DATE OF JUDGMENT25/04/1973 BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN CITATION: 1973 AIR 2190 1974 SCR (1) 78 1973 SCC (2) 406 ACT: Indian Penal Code, s. 211-Its scope. HEADNOTE: Pursuant to an F.I.R. the respondent, I and few others were tried before Addl. District Magistrate for offences under Ss. 147, 323/149 and 325/149, I.P.C. The A.D.M. acquitted all the accused. Respondent lzhar, one of the accused was implicated and wrongly identified, although he was not one of the assailants present at the place of occurrence. Later, respondent lzhar filed a petition before the A.D.M. under Ss. 476/479 Cr. P.C. praying that the appellant, one K and the sub-Inspector of Police, be prosecuted for the offence under Ss. 211/193 I.P.C. because the S.I. in collusion with K had submitted a wrong charge sheet whereas K had lodged a false report at the instance of one H and also these three persons had intentionally given false evidence during petitioner's trial and fabricated false evidence. The Magistrate rejected the application of the respondent following the case of' Shabir Hussain Bholu v. State of Maharashtra, A.I.R. 1963 S.C. 816. The Sessions Court also dismissed the appeal. On a revision u/s. 435/439 Cr.P.C. the High Court recorded its opinion that it was a fit case in which the complaint under s. 211, I.P.C. should be filed against the persons responsible for lzhar's false prosecution and directed accordingly. According to the respondents, when the appellant stated in the witness box that he had seen Izhar with others in 'marpit' and thereafter in the identification parade in the jail he had made a false charge against lzhar therefore, he was liable to be prosecuted under s. 211 I.P.C. Allowing the appeal. HELD : (i) The essential ingredient of an offence under s. 211 I.P.C. is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings resume false charge but false charge may be prepared even when no criminal proceedings result. In the present case, the appellant had not instituted any criminal proceedings against anybody; neither did he 'falsely charge' anybody. Giving false evidence against an accused person during the course of a criminal trial, may appropriately amount to an offence under Ss. 193, I.P.C.; but the statement in order to constitute the "charges" under sec. 211, I.P.C. should be made either in a complaint or in a report of a cognisable offence to a competent police officer with the intention of setting the criminal law in motion. Therefore, under the circumstances, no offence under s. 211, I.P.C. can be 'considered to have been committed. [64D] (ii)In view of the appellant's statement that he did not see lzhar amongst the assailants, it was not possible to understand how it could be expedient in the interest of justice to direct the appellant's prosecution. Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge. [65D-E] (iii)Identification at test parades could by no stretch of imagination, be considered to amount to a false charge against the respondent lzhar as contemplated by s. 211 I.P.C. Such identification is not substantive evidence and it can only be used as corroborative of the statement in court. [65E] 79 (iv)It is doubtful if the High Court had at all jurisdiction to make an order of complaint because it was neither the court which tried the original offences nor a court to which the trial court was subordinate. The High Court, instead of directing the prosecution of the appellant, could have quashed the orders of the two courts below and send the case back to the trial court for reconsideration of the matter in accordance with law. [65H] Kuldip Singh v. State of Punjab, [1956] S.C.R. 125 and Haridas v. State of West Bengal, [1964] 7 S.C.R. 237, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No,. 35 of
1970.
Appeal by special leave from the judgment and order dated
May 22, 1969 of the Allahabad High Court, (Lucknow Bench) at
Lucknow in Cr. A. No. 132 of 1967.
R. K. Jain and A. K. Gupta, for the appellant
K. L. Kohli, for the respondents.
The Judgment of the Court was delivered by
DUA, J. In this appeal by special leave, the appellant
challenges the order of a learned single Judge of the
Lucknow Bench of the Allahabad High Court dated May 22, 1969
allowing the revision of lzhar Hussain and after setting
aside the order of the Sessions Judge, Barabanki dated March
15, 1967 as also that of the Additional District Magistrate
(Judicial), Barabanki dated January 11, 1967, directing the
Deputy Registrar of the- High Court to file a complaint
under S. 21 1, I.P.C. against the appellant for falsely
charging Izhar Hussain with offences under ss. 323 and 325
read with S. 149 and under S. 147, I.P.C. in the court of
the Additional District Magistrate (Judicial), Barabanki.
It appears that pursuant to the first information report
(Ext. Ka-9) lodged by Kartar Singh s/o Shri Lachman Singh
at police station Kotwali Sub-District Nawabganj, District
Barabanki on February 7, 1966, lzhar Hussain respondent and
some others were tried in the court of the Additional
District Magistrate (Judicial), Barabanki for offences under
ss. 147, 323/149 and 325/149, I.P.C. Several witnesses were
examined in support of the prosecution case. Santokh Singh
appellant appeared as P.W.4. In his examination in chief, so
far as relevant for our purpose, he had deposed on September
3, 1966 as follows :-
“I had gone to the jail for identifying the
accused persons. By putting his hand on Mohd,
Zahir, Usman, Shahnshah, Puttan and Izhar
Husain the witness stated, I had seen them in
the marpit and thereafter in the
identification parade in the jail-”
In cross-examination, he had stated, inter
alia
“I did not see among the assailants the
accused lzhar Hussain present in Court. I did
not happen to see this boy in that night. The
men of the Octroi post said to me that Anwar’s
son Izhar was also present among the
assailants. I identified this boy in the jail
at the instance of the people of the Octroi
post.”
80
The Additional District Magistrate trying the cases
acquitted all the accused of the offences charged on
November 30, 1966. In the course of his judgment. the
learned Magistrate observed inter alia
“One of the accused lzhar Hussain is a boy
aged about 13 years. It has been stated by
Kartar Singh and- Santokh Singh that actually
they had not seen him ;it the place of
occurrence. Still Santokh Singh identified
him before Shri A. P. Singh, Magistrate. He
explains that this he did because the Octroi
personnel told him so. Obviously on their
mere telling it could not have been possible
to identify this boy.”
Earlier the learned Magistrate had observed that Kartar
Singh and Santokh Singh were obviously the victims of the
assault. It is noteworthy that the Additional District
Magistrate while acquitting the accused persons did not hold
that Santokh Singh had falsely charged lzhar Hussain or any
other accused persons, nor did the learned Magistrate
consider it to be expedient in the interest of justice to
prosecute Santokh Singh for an offence under s. 21 1, I.P.C.
In January, 1967, lzhar Hussain presented an application in
the court of the Additional District Magistrate (Judicial),
Barabanki under ss. 476/479-A, Cr-P.C. (in the application
as printed in the paper book apparently these sections have
wrongly been described to be of I.P.C.) praying that Kartar
Singh, Santokh Singh and R. D. Chowdhry, S.I., police
station Kotwali, be prosecuted for the offence under ss.
211/193, I.P.C. because Shri R. D. Chowdhry in collusion
with Shri Kartar Singh had submitted a wrong charge sheet
whereas Kartar Singh had lodged a false report at the insta
nce of one Karnail Singh and also that these three
persons had intentionally given false evidence during the
petitioner’s trial and had also intentionally fabricated
false evidence for the purpose of being used as evidence in
the case.
The Additional District Magistrate observed that after
considering the evidence in the main case he had disbelieved
the witnesses for the prosecution and had held lzhar
Hussain’s prosecution to be false but in spite of this
conclusion he had not directed any proceedings to be taken
under s. 479-A, Cr.P.C., nor had be ordered criminal
prosecution of the three aforementioned witnesses. The
proceedings under s. 476, Cr.P.C. were accordingly held
incompetent. ‘Ibis view was taken on the basis of the
decision of this Court in Kuppa Goundan and another v. M. S.
P. Rajesh(1) and two other decisions of the Madras High
Court. In his order, however, the learned Magistrate also
made a reference to Shabir Hussain Bholu v. State of
Maharashtra (2). lzhar Hussain’s application was considered
by the Magistrate to be misconceived in view of the decision
in Shabir Hussain’s case (supra) and rejected.
lzhar Hussain took the matter on appeal to the court of the
Sessions Judge but with no better fate. The Sessions Judge
also
(1) A.J.R. 1966 S. C. 1863.
(2) A.T.R. 1963 S. C. 816.
81
referred to the aforesaid two decisions of this Court and
observed as follows
“Applying the said principle of law as laid
down by their Lordships, it is obvious that
the entire material was before the Court
below and in spite of the fact that it arrived
at the finding that the witness had perjured,
it did not decide to proceed under Section
479-A, Code of Criminal Procedure. In these
circumstances, it was not open to the Court
below to have proceeded for perjury under
Section 479-A, Code of Criminal Procedure, as
prayed by the learned counsel appearing on
behalf of the appellant, because upon the
facts of the present case, out of which this
appeal has arisen, the bar of clause (6) of
Section 479-A clearly came into play. Thus,
the Court below was correct in dismissing the
application made by the appellant as
misconceived.,,
The appeal of Izhar Hussain was accordingly dismissed.
lzhar. Hussain thereupon took the matter to the Lucknow
Bench of the Allahabad High Court on revision under ss.
435/439, Cr.P.C. The learned single Judge observed that even
accepting the view of the courts below that no complaint
under S. 193, I.P.C. could be, filed because of the
technical defect, the applicant’s prayer for filing a
complaint under S. 21 1, I.F.C. should have been considered.
It was then observed that lzhar Hussain. a boy of 13 years
had been falsely prosecuted in the case and that his
participation in the crime was highly improbable, if not
impossible. He further observed that Kartar Singh had not
named Izhar Hussain as one of the assailants in the F.I.R.
lodged by him, nor did Kartar Singh identify Izhar Hussain
as a culprit in the test identification parade or in the
trial court. Santokh Singh appellant, however, did identify
lzhar Hussain as one of the participants in the crime in the
test identification parade and also picked him up in the
trial court stating that he had also taken part in the
crime. In the cross-examination, as the High Court itself
noticed, Santokh Singh expressly admitted that he had not
seen lzhar Hussain amongst the assailants and indeed he had
not seen lzhar Hussain that night. On this material, the
High Court felt that it had been established beyond doubt
that lzhar Hussain had been implicated falsely. On this
premise, the High Court recorded its opinion that it was a
fit case in which the complaint under S. 211, I.P.C. should
be filed against the persons responsible for Izhar Hussain’s
false prosecution. After so observing, the High Court felt
that since Kartar Singh had frankly stated that he had not
seen lzhar Hussain at the spot on the night in question at
all there was no cogent ground for prosecuting him. The
cases of Santokh Singh appellant and of R. D. Chowdhry were
considered to be different. Izhar Hussain’s father who
carried on transport business through trucks and lorries
had, according to the MO Court, trade rivalry with Santokh
Singh and his master. There was thus a “foul attempt” to
wreak vengeance against Izhar Hussain’s father by falsely
implicating the minor boy and for this reason, it was
directed that the complaint under s. 21 1, I.P.C. be filed
against the appellant for falsely charging Izhar Hussain for
the offences already mentioned.
7-L 944 Sup CI/73
82
In this Court,- Shri Gupta has very forcefully contended
that on the material on the record this direction is wholly
unjustified, if not positively illegal, being based on
misreading of evidence and on ,erroneous view of law.
According to the submission, the appellant had neither
lodged the F.I.R. nor otherwise instituted any criminal
proceeding or falsely charged Izhar Hussain within the
contemplation of s. 21 1, I.P.C.Besides, there is
absolutely no material on the record on which theHigh Court
could have formed an opinion that it is expedient in the
interest of justice that a complaint under s. 21 1, I.P.C.
should be filedagainst the appellant.
Shri- Kohli on behalf of the respondents has tried to
support the order of the HIgh Court and has submitted that,
as observed by Madholkar, J. in Haridas v. State of West
Bengal(1) the words “or :falsely charges” in s. 211, I.P.C.
are not restricted by the words “institutes or causes to be
instituted any criminal proceeding”. The Legislature
according to the submission has provided in this section for
two kinds of acts : (i) the institution of proceeding and
(ii) making a false charge. This section ‘in the words of
Mudholkar, J., added Shri Kohli, is not limited to the
institution of a complaint upon a false charge as such an
interpretation would completely shut out criminal
proceedings in which no charge of an offence has been made.
It is on this. observation that the learned counsel has
tried to build and ,develop the contention that when the
appellant stated in the witness box as P.W.4 that he had
seen Mohd. Zahir, Usman, Shahanshah, Puttan and lzhar
Hussain in the marpit and thereafter in the identification’
parade in the jail, he had made a false charge against lzhar
Hussain and was, therefore, liable to be prosecuted for an
offence under s. 211, I.P.C. The counsel has in this
connection expressly stated that he does not want to
prosecute the appellant for any offence mentioned in s. 479-
A, Cr.P.C. The bar resulting from non-complaince with that
section would, therefore, be ineffective so far as prosecu-
tion for other offences is concerned. In support of his
case he has relied on ss. 195 (1 ) (b) and 476,
I.P.C.Section 195 so far as relevant reads
Prosecution for contempt (1) No Court shall
of lawful authority of take cognizance
public servants.
(a) x x x x x Prosecution for certain offences against public justice.
(b) of any offence punishable under any of
the following sections of the same Code,
namely, sections 193, 194, 195, 196, 199, 200,
205, 2P6, 207- 208, 209, 210, 211 and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceedings in any Court, except on the
complaint in writing of
(1) [1964] 7. C.R. 237.
83
such Court or of some other Court to which
such Court is subordinate; or
(c) x x x x
Sub-section (3) of this section lays down that for the
purposes of this section, a Court shall be deemed to be
subordinate to the court to which appeals ordinarily lie
from- the appealable decrees or sentences of such former
court. According to the proviso, where- appeals lie to
more, than one court, the Appellate Court of inferior
jurisdiction shall be the court to which such Court shall be
deemed to be subordinate Section 476 which provides for
procedure in cases mentioned in g. 195 so far as relevant
for our purpose lays down
“476. (1) When any Civil,
Revenue or Criminal
Court is, whether
on application
Procedure in cases made to it in this
behalf or other
mentioned in wise, of opinion that it
is expedient in
section 195. the interests of justice that
an inquiry should be made into, any
offence referred to in section 195,
subsection (1), clause (b) or clause (c),
which appears to have been committed in or in
relation to a proceeding in that Court, such
Court may, after such preliminary inquiry, if
any, as it thinks necessary, record a finding
to that effect and make a complaint thereof in
writing signed by the presiding officer of the
Court, and shall forward the same to a
Magistrate, of the first class having juris-
diction, and may take sufficient security for
the appearance of the accused before such
Magistrate or if the alleged offence is non-
bailable may, if it thinks necessary so to do,
send the accused in custody to such
Magistrate, and may bind over any person to
appear and give evidence before such
Magistrate
Provided that, where the Court making the
complaint is a High Court, the complaint may
be signed by such officer of the Court as the
Court may appoint..
For the purposes of this sub-section, a
Presidency Magistrate shall be deemed to be a
Magistrate of the first class.”
Now, in the present case, the Additional District
Magistrate on November 30, 1966 acquitted all the accused of
the offences charged. He did not hold that the appellant had
falsely charged. Izhar Hussain with any offence, nor did he
consider it expedient in the interest of justice to
prosecute him for an offence under s. 211, I.P.C. As already
noticed when in January, 1967, Izhar Hussain applied to that
court under ss. 476/479-A, Cr.P.C. for the prosecution of
the appellant and two others, the court felt that in view of
the decision in Kuppa Goundan’s case (supra) the proceedings
under S. 476, Cr-P.C. were incompetent. Section 479-A has
not been relied upon by Shri Kohli and in our opinion
rightly because on the admitted
84
facts in this case that section has not been complied with.
In Kuppa Goundan’s case (supra) it was observed that the
scheme of S. 479-A, Cr.P.C. is to enact a special procedure
for more expeditious and effective manner of dealing with
certain cases of perjury and fabrication of false evidence
of witness in the course of judicial proceedings. But the
necessary condition for applying this section is that the
court must form an opinion that a particular witness or
witnesses is or are giving false evidence and at the time of
delivering its judgment record a finding to that effect.
This was not done in this case. Now, by virtue of s. 479-
A(6) no proceeding can be taken against Santokh Singh under
ss. 476 to 479 for giving false evidence. Shri Kohli’s
argument, as already noticed, is that the appellant is not
being prosecuted for giving false evidence as indeed that is
not permissible now, but only for falsely charging lzhar
Hussain in his evidence in court. The short question posed,
therefore, is, if by giving false evidence as a witness
against Izhar Hussain the appellant can be said to have
charged him within the contemplation of s-211, I.P.C. If
this question is answered in the affirmative, then it will
have to be determined whether there is in fact a false
accusation and finally whether it is expedient in the,
interest of justice on the facts and circumstances of the
present case to direct a complaint to be filed under s. 21
1, I.P.C. This section as its marginal note indicates
renders punishable false charge of offence with intent to
injure. The essential ingredient of an offence under s.
211, I.P.C. is to institute or cause, to be instituted any
criminal proceeding against a’ person with intent to cause
him injury or with similar intent to falsely charge any
person with having committed an offence, knowing that there
is no just or lawful ground for such proceeding or charge.
Instituting or causing to institute false criminal
proceedings assume false charge but false charge may be
preferred even when no criminal proceedings result. It is
frankly conceded by Shri Kohli that the appellant cannot be
said to have instituted any criminal proceeding against any
person. So, that part of s. 211, I.P.C. is eliminated.
Now, the expression “falsely charges’.’ in this section, in
our opinion, cannot mean giving false evidence as a
prosecution witness against an accused person during the
course of a criminal trial. “To falsely charge” must refer
to the original or initial accusation putting or seeking to
put in motion the machinery of criminal investigation and
not when seeking to prove the false charge by making
deposition in support of the charge framed in that trial.
The words “falsely charges” have to be, read along with the
expression “institution of criminal proceeding”. Both these
expressions, being susceptible of analogous meaning should
be understood to have been. used in their cognate sense.
They get as it were their colour and content from each
other. They seem to have been used in a technical sense as
commonly understood in our criminal law. The false charge
must, therefore, be made initially to a person in authority
or to someone who is in a position to get the offender
punished by appropriate proceedings. In other words, it
must be’ embodied either in a complaint or in a report of a
cognizable offence to the police officer or to an officer
having authority over the person against whom the
allegations are made. The statement in order to constitute
the “charges” should be made with the intention and object
85
of setting criminal law in motion. Statement on oath
falsely supporting the prosecution case against an accused
person more appropriately amounts to an offence under ss.
193 and 195, I.P.C. and not under s. 21 1, I.P.C. We do not
think that the offences contemplated by ss. 193/195,I.P.C.
on the one hand and S. 211, I.P.C. on the other were
intended by the legislature, in this context, to overlap so
as to make it optional whether to proceed under one or the
other. The High Court was, therefore, in error in thinking
that in the present case the appellant’s statement as a
witness in the trial court, could be construed as a charge
against lzhar Hussain. Once it is held that no offence
under s. 211, I.P.C. can be considered to have been com-
mitted, then no other question arises for, as conceded by
Shri Kohli, Section 479-A would bar prosecution for giving
false evidence.
The High Court also seems to have committed serious error in
ignoring that in the appellant’s statement he had clearly
stated that he had not seen amongst the assailants the
accused Izhar Hussain present in the court. In face of this
statement, there was no question of the appellant having
made any accusation against lzhar Hussain in his deposition.
In any event, considering the entire statement of the
appellant it is not understood how it can be considered
expedient in the interest of justice to direct the
appellant’s prosecution. Every incorrect or false statement
does not make it incumbent on the court to order
prosecution. The court has to exercise judicial discretion
in the light of all the relevant circumstances when it
determines the question of expediency. The court orders
prosecution in the larger interest of the administration of
justice and not to gratify feelings of personal revenge or
vindictiveness or to serve the ends of a private party. Too
frequent prosecutions for such offences tend to defeat its
very object. It is only in glaring cases of deliberate
falsehood where conviction is highly likely, that the court
should direct prosecution. The High Court seems to have
misunderstood the appellant’s evidence and has also failed
to apply its mind to the question of expediency. Reference
by the High Court to identification parade is also somewhat
inappropriate. Identification at test parades could by no
stretch be considered to amount to a false charge against
Izhar Hussain as contemplated by s. 211, I.P.C. Such
identification is not substantive evidence and it can only
be used as corroborative of the statement in court. The
identification parade thus could not improve the prosecution
case.
Besides, we entertain considerable doubt if the High Court
had at all jurisdiction to make an order of complaint as it
has done. It was either the court which tried the original
offences or a court to which the trial court was
subordinate, that could make such an order. The court of
the Additional District Magistrate would not seem to be
subordinate to the High Court as provided by section 195(3),
Cr-P.C.’ Kuldip Singh v. State of Punjab(1). Two courts
below having in their judicial discretion declined to direct
the prosecution of the appellant, on revision the High Court
was, in our view, not all justified in itself directing the
filing of the complaint. At best, if it considered
(1) [1956] S.C.R. 125.
86
the orders of the two courts below tainted with a serious
legal infirmity or manifest error resulting in grave
miscarriage of justice, it could have, after quashing those
orders, sent the case back to the trial court for
reconsideration of the matter in accordance with law’
As a result of the foregoing discussion, we have no
hesitation in allowing this appeal and setting aside the
order of. the High Court.
S.C. Appeal alloWed.
87
