{"id":37064,"date":"1973-04-25T00:00:00","date_gmt":"1973-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santokh-singh-vs-izhar-hussain-and-anr-on-25-april-1973"},"modified":"2017-01-06T00:41:07","modified_gmt":"2017-01-05T19:11:07","slug":"santokh-singh-vs-izhar-hussain-and-anr-on-25-april-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santokh-singh-vs-izhar-hussain-and-anr-on-25-april-1973","title":{"rendered":"Santokh Singh vs Izhar Hussain And Anr on 25 April, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Santokh Singh vs Izhar Hussain And Anr on 25 April, 1973<\/div>\n
Equivalent citations: 1973 AIR 2190, \t\t 1974 SCR (1)\t 78<\/div>\n
Author: I Dua<\/div>\n
Bench: Dua, I.D.<\/div>\n
           PETITIONER:\nSANTOKH SINGH\n\n\tVs.\n\nRESPONDENT:\nIZHAR HUSSAIN AND ANR.\n\nDATE OF JUDGMENT25\/04\/1973\n\nBENCH:\nDUA, I.D.\nBENCH:\nDUA, I.D.\nMATHEW, KUTTYIL KURIEN\n\nCITATION:\n 1973 AIR 2190\t\t  1974 SCR  (1)\t 78\n 1973 SCC  (2) 406\n\n\nACT:\nIndian Penal Code, s. 211-Its scope.\n\n\n\nHEADNOTE:\nPursuant to an F.I.R. the respondent, I and few others\twere\ntried  before Addl.  District Magistrate for offences  under\nSs. 147, 323\/149 and 325\/149, I.P.C.\nThe A.D.M. acquitted all the accused.  Respondent lzhar, one\nof  the\t accused  was  implicated  and\twrongly\t identified,\nalthough  he  was not one of the assailants present  at\t the\nplace of occurrence.\nLater,\trespondent lzhar filed a petition before the  A.D.M.\nunder Ss. 476\/479 Cr. P.C. praying that the appellant, one K\nand  the  sub-Inspector\t of Police, be\tprosecuted  for\t the\noffence\t under\tSs.  211\/193  I.P.C.  because  the  S.I.  in\ncollusion with K had submitted a wrong charge sheet  whereas\nK  had\tlodged a false report at the instance of one  H\t and\nalso  these  three  persons had\t intentionally\tgiven  false\nevidence  during  petitioner's trial  and  fabricated  false\nevidence.\nThe  Magistrate rejected the application of  the  respondent\nfollowing  the\tcase of' Shabir Hussain Bholu  v.  State  of\nMaharashtra, A.I.R.<\/a> 1963 S.C. 816.  The Sessions Court\talso\ndismissed  the appeal.\tOn a revision u\/s.  435\/439  Cr.P.C.\nthe  High Court recorded its opinion that it was a fit\tcase\nin which the complaint under s. 211, I.P.C. should be  filed\nagainst\t  the\tpersons\t responsible   for   lzhar's   false\nprosecution and directed accordingly.\nAccording  to the respondents, when the appellant stated  in\nthe  witness  box  that he had seen  Izhar  with  others  in\n'marpit' and thereafter in the identification parade in\t the\njail he had made a false charge against lzhar therefore,  he\nwas liable to be prosecuted under s. 211 I.P.C.\nAllowing the appeal.\nHELD  : (i) The essential ingredient of an offence under  s.\n211  I.P.C.  is to institute or cause to be  instituted\t any\ncriminal  proceeding against a person with intent  to  cause\nhim  injury  or with similar intent to\tfalsely\t charge\t any\nperson with having committed an offence, knowing that  there\nis  no just or lawful ground for such proceeding or  charge.\nInstituting   or   causing  to\tinstitute   false   criminal\nproceedings  resume  false charge but false  charge  may  be\nprepared  even when no criminal proceedings result.  In\t the\npresent case, the appellant had not instituted any  criminal\nproceedings against anybody; neither did he 'falsely charge'\nanybody.   Giving false evidence against an  accused  person\nduring\tthe  course of a criminal trial,  may  appropriately\namount\tto  an\toffence\t under\tSs.  193,  I.P.C.;  but\t the\nstatement  in order to constitute the \"charges\"\t under\tsec.\n211,  I.P.C.  should be made either in a complaint or  in  a\nreport of a cognisable offence to a competent police officer\nwith  the intention of setting the criminal law\t in  motion.\nTherefore, under the circumstances, no offence under s. 211,\nI.P.C. can be 'considered to have been committed. [64D]\n(ii)In\tview of the appellant's statement that he  did\tnot\nsee  lzhar  amongst the assailants, it was not\tpossible  to\nunderstand  how\t it could be expedient in  the\tinterest  of\njustice\t to  direct  the  appellant's  prosecution.    Every\nincorrect  or false statement does not make it incumbent  on\nthe  court to order prosecution.  The court has to  exercise\njudicial  discretion  in  the  light  of  all  the  relevant\ncircumstances when it determines the question of expediency.\nThe  court orders prosecution in the larger interest of\t the\nadministration\tof  justice and not to gratify\tfeelings  of\npersonal revenge. [65D-E]\n(iii)Identification  at test parades could by no stretch  of\nimagination,  be  considered  to amount to  a  false  charge\nagainst\t the  respondent  lzhar as contemplated\t by  s.\t 211\nI.P.C.\tSuch identification is not substantive evidence\t and\nit  can\t only be used as corroborative of the  statement  in\ncourt. [65E]\n79\n(iv)It\t is  doubtful  if  the\tHigh  Court  had   at\tall\njurisdiction  to make an order of complaint because  it\t was\nneither\t the court which tried the original offences  nor  a\ncourt  to which the trial court was subordinate.   The\tHigh\nCourt,\t instead  of  directing\t the  prosecution   of\t the\nappellant,  could have quashed the orders of the two  courts\nbelow  and  send  the  case back  to  the  trial  court\t for\nreconsideration of the matter in accordance with law. [65H]\nKuldip\tSingh  v.  State of Punjab, [1956]  S.C.R.  125\t and\nHaridas\t v.  State  of West Bengal,  [1964]  7\tS.C.R.\t237,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No,. 35 of
\n1970.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nMay 22, 1969 of the Allahabad High Court, (Lucknow Bench) at
\nLucknow in Cr.\tA. No. 132 of 1967.\n<\/p>\n
R.   K. Jain and A. K. Gupta, for the appellant
\nK.   L. Kohli, for the respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nDUA,  J.  In  this appeal by special  leave,  the  appellant
\nchallenges  the\t order\tof a learned  single  Judge  of\t the
\nLucknow Bench of the Allahabad High Court dated May 22, 1969
\nallowing  the  revision of lzhar Hussain and  after  setting
\naside the order of the Sessions Judge, Barabanki dated March
\n15, 1967 as also that of the Additional District  Magistrate
\n(Judicial), Barabanki dated January 11, 1967, directing\t the
\nDeputy\tRegistrar  of the- High Court to  file\ta  complaint
\nunder  S.  21 1, I.P.C. against the  appellant\tfor  falsely
\ncharging  Izhar Hussain with offences under ss. 323 and\t 325
\nread  with S. 149 and under S. 147, I.P.C. in the  court  of
\nthe Additional District Magistrate (Judicial), Barabanki.
\nIt  appears  that pursuant to the first\t information  report
\n(Ext.\tKa-9) lodged by Kartar Singh s\/o Shri Lachman  Singh
\nat  police station Kotwali Sub-District Nawabganj,  District
\nBarabanki on February 7, 1966, lzhar Hussain respondent\t and
\nsome  others  were  tried in the  court\t of  the  Additional
\nDistrict Magistrate (Judicial), Barabanki for offences under
\nss. 147, 323\/149 and 325\/149, I.P.C. Several witnesses\twere
\nexamined in support of the prosecution case.  Santokh  Singh
\nappellant appeared as P.W.4. In his examination in chief, so
\nfar as relevant for our purpose, he had deposed on September
\n3, 1966 as follows :-\n<\/p>\n
\t      “I  had gone to the jail for  identifying\t the
\n\t      accused persons.\tBy putting his hand on Mohd,
\n\t      Zahir,  Usman,  Shahnshah,  Puttan  and  Izhar
\n\t      Husain the witness stated, I had seen them  in
\n\t      the    marpit    and   thereafter\t   in\t the
\n\t      identification parade in the jail-”
\n\t      In  cross-examination,  he had  stated,  inter
\n\t      alia
\n\t      “I  did  not  see\t among\tthe  assailants\t the
\n\t      accused lzhar Hussain present in Court.  I did
\n\t      not happen to see this boy in that night.\t The
\n\t      men of the Octroi post said to me that Anwar’s
\n\t      son   Izhar   was\t also  present\t among\t the
\n\t      assailants.  I identified this boy in the jail
\n\t      at  the instance of the people of\t the  Octroi
\n\t      post.”\n<\/p><\/blockquote>\n
80<\/span><\/p>\n
The   Additional  District Magistrate  trying  the   cases
\nacquitted  all\tthe  accused  of  the  offences\t charged  on
\nNovember  30,  1966.   In the course of\t his  judgment.\t the
\nlearned Magistrate observed inter alia
\n\t      “One  of\tthe accused lzhar Hussain is  a\t boy
\n\t      aged  about 13 years.  It has been  stated  by
\n\t      Kartar Singh and- Santokh Singh that  actually
\n\t      they  had\t not  seen  him\t ;it  the  place  of
\n\t      occurrence.   Still Santokh  Singh  identified
\n\t      him  before Shri A. P. Singh, Magistrate.\t  He
\n\t      explains\tthat this he did because the  Octroi
\n\t      personnel\t told  him so.\tObviously  on  their
\n\t      mere  telling it could not have been  possible
\n\t      to identify this boy.”\n<\/p>\n
Earlier\t the  learned Magistrate had  observed\tthat  Kartar
\nSingh  and Santokh Singh were obviously the victims  of\t the
\nassault.   It  is noteworthy that  the\tAdditional  District
\nMagistrate while acquitting the accused persons did not hold
\nthat Santokh Singh had falsely charged lzhar Hussain or\t any
\nother  accused\tpersons,  nor  did  the\t learned  Magistrate
\nconsider  it to be expedient in the interest of justice\t to
\nprosecute Santokh Singh for an offence under s. 21 1, I.P.C.
\nIn January, 1967, lzhar Hussain presented an application  in
\nthe court of the Additional District Magistrate\t (Judicial),
\nBarabanki  under ss. 476\/479-A, Cr-P.C. (in the\t application
\nas printed in the paper book apparently these sections\thave
\nwrongly been described to be of I.P.C.) praying that  Kartar
\nSingh,\tSantokh\t Singh\tand R.\tD.  Chowdhry,  S.I.,  police
\nstation\t Kotwali,  be prosecuted for the offence  under\t ss.
\n211\/193,  I.P.C.  because Shri R. D. Chowdhry  in  collusion
\nwith  Shri Kartar Singh had submitted a wrong  charge  sheet
\nwhereas\t Kartar\t Singh\thad lodged a  false  report  at\t the insta
\nnce  of\t one Karnail Singh and also that  these\t three
\npersons\t had intentionally given false evidence\t during\t the
\npetitioner’s  trial  and had also  intentionally  fabricated
\nfalse evidence for the purpose of being used as evidence  in
\nthe case.\n<\/p>\n
The  Additional\t District  Magistrate  observed\t that  after
\nconsidering the evidence in the main case he had disbelieved
\nthe  witnesses\tfor  the  prosecution  and  had\t held  lzhar
\nHussain’s  prosecution\tto  be false but in  spite  of\tthis
\nconclusion  he had not directed any proceedings to be  taken
\nunder  s.  479-A,  Cr.P.C.,  nor  had  be  ordered  criminal
\nprosecution  of\t the three  aforementioned  witnesses.\t The
\nproceedings  under  s. 476, Cr.P.C.  were  accordingly\theld
\nincompetent.   ‘Ibis  view  was taken on the  basis  of\t the
\ndecision of this Court in Kuppa Goundan and another v. M. S.
\nP.  Rajesh(1)  and two other decisions of  the\tMadras\tHigh
\nCourt.\t In his order, however, the learned Magistrate\talso
\nmade  a\t reference  to\tShabir Hussain\tBholu  v.  State  of
\nMaharashtra<\/a> (2). lzhar Hussain’s application was  considered
\nby the Magistrate to be misconceived in view of the decision
\nin Shabir Hussain’s case (supra) and rejected.
\nlzhar Hussain took the matter on appeal to the court of the
\nSessions Judge but with no better fate.\t The Sessions  Judge
\nalso
\n(1) A.J.R. 1966 S. C. 1863.\n<\/p>\n
(2) A.T.R. 1963 S. C. 816.\n<\/p>\n
81<\/span><\/p>\n
referred  to the aforesaid two decisions of this  Court\t and
\nobserved as follows
\n\t      “Applying\t the said principle of law  as\tlaid
\n\t      down  by their Lordships, it is  obvious\tthat
\n\t      the  entire  material was before\tthe  Court
\n\t      below and in spite of the fact that it arrived
\n\t      at the finding that the witness had  perjured,
\n\t      it  did  not decide to proceed  under  Section
\n\t      479-A,  Code of Criminal Procedure.  In  these
\n\t      circumstances,  it was not open to  the  Court
\n\t      below  to\t have proceeded\t for  perjury  under
\n\t      Section 479-A, Code of Criminal Procedure,  as
\n\t      prayed  by  the learned counsel  appearing  on
\n\t      behalf  of  the appellant,  because  upon\t the
\n\t      facts  of the present case, out of which\tthis
\n\t      appeal  has arisen, the bar of clause  (6)  of
\n\t      Section  479-A clearly came into play.   Thus,
\n\t      the Court below was correct in dismissing\t the
\n\t      application   made   by\tthe   appellant\t  as
\n\t      misconceived.,,
\nThe appeal of Izhar Hussain was accordingly dismissed.
\nlzhar.\t Hussain  thereupon took the matter to\tthe  Lucknow
\nBench  of  the Allahabad High Court on\trevision  under\t ss.
\n435\/439, Cr.P.C. The learned single Judge observed that even
\naccepting  the\tview of the courts below that  no  complaint
\nunder  S.  193,\t I.P.C.\t could\tbe,  filed  because  of\t the
\ntechnical  defect,  the\t applicant’s  prayer  for  filing  a
\ncomplaint under S. 21 1, I.F.C. should have been considered.
\nIt  was then observed that lzhar Hussain. a boy of 13  years
\nhad  been  falsely  prosecuted\tin the\tcase  and  that\t his
\nparticipation  in  the crime was highly improbable,  if\t not
\nimpossible.   He further observed that Kartar Singh had\t not
\nnamed  Izhar Hussain as one of the assailants in the  F.I.R.
\nlodged\tby him, nor did Kartar Singh identify Izhar  Hussain
\nas  a  culprit in the test identification parade or  in\t the
\ntrial court.  Santokh Singh appellant, however, did identify
\nlzhar Hussain as one of the participants in the crime in the
\ntest  identification  parade and also picked him up  in\t the
\ntrial  court  stating  that he had also taken  part  in\t the
\ncrime.\t In the cross-examination, as the High Court  itself
\nnoticed,  Santokh Singh expressly admitted that he  had\t not
\nseen lzhar Hussain amongst the assailants and indeed he\t had
\nnot  seen lzhar Hussain that night.  On this  material,\t the
\nHigh  Court felt that it had been established  beyond  doubt
\nthat  lzhar  Hussain had been implicated falsely.   On\tthis
\npremise,  the High Court recorded its opinion that it was  a
\nfit case in which the complaint under S. 211, I.P.C.  should
\nbe filed against the persons responsible for Izhar Hussain’s
\nfalse prosecution.  After so observing, the High Court\tfelt
\nthat  since Kartar Singh had frankly stated that he had\t not
\nseen  lzhar Hussain at the spot on the night in question  at
\nall  there  was no cogent ground for prosecuting  him.\t The
\ncases of Santokh Singh appellant and of R. D. Chowdhry\twere
\nconsidered  to\tbe different.  Izhar  Hussain’s\t father\t who
\ncarried\t on  transport business through trucks\tand  lorries
\nhad,  according to the MO Court, trade rivalry with  Santokh
\nSingh  and his master.\tThere was thus a “foul\tattempt”  to
\nwreak  vengeance against Izhar Hussain’s father\t by  falsely
\nimplicating  the  minor\t boy and for  this  reason,  it\t was
\ndirected  that the complaint under s. 21 1, I.P.C. be  filed
\nagainst the appellant for falsely charging Izhar Hussain for
\nthe offences already mentioned.\n<\/p>\n
7-L 944 Sup CI\/73
\n82<\/span>
\nIn  this  Court,- Shri Gupta has very  forcefully  contended
\nthat on the material on the record this direction is  wholly
\nunjustified,  if  not  positively illegal,  being  based  on
\nmisreading  of\tevidence  and on  ,erroneous  view  of\tlaw.
\nAccording  to  the  submission, the  appellant\thad  neither
\nlodged\tthe  F.I.R. nor otherwise  instituted  any  criminal
\nproceeding  or\tfalsely\t charged Izhar\tHussain\t within\t the
\ncontemplation of s. 21 1, I.P.C.Besides,     there     is
\nabsolutely no material on the record on which theHigh Court
\ncould  have  formed an opinion that it is expedient  in\t the
\ninterest  of justice that a complaint under s. 21 1,  I.P.C.
\nshould be filedagainst the appellant.\n<\/p>\n
Shri-  Kohli  on  behalf of the\t respondents  has  tried  to
\nsupport the order of the HIgh Court and has submitted  that,
\nas  observed  by Madholkar, J. in Haridas v. State  of\tWest
\nBengal(1) the words “or :falsely charges” in s. 211,  I.P.C.
\nare not restricted by the words “institutes or causes to  be
\ninstituted   any  criminal  proceeding”.   The\t Legislature
\naccording to the submission has provided in this section for
\ntwo  kinds of acts : (i) the institution of  proceeding\t and\n<\/p>\n
(ii)  making a false charge.  This section ‘in the words  of
\nMudholkar,  J.,\t added\tShri Kohli, is not  limited  to\t the
\ninstitution  of a complaint upon a false charge as  such  an
\ninterpretation\t would\t completely   shut   out    criminal
\nproceedings in which no charge of an offence has been  made.
\nIt  is\ton this. observation that the  learned\tcounsel\t has
\ntried  to  build and ,develop the contention that  when\t the
\nappellant  stated  in the witness box as P.W.4 that  he\t had
\nseen  Mohd.   Zahir,  Usman, Shahanshah,  Puttan  and  lzhar
\nHussain in the marpit and thereafter in the  identification’
\nparade in the jail, he had made a false charge against lzhar
\nHussain\t and was, therefore, liable to be prosecuted for  an
\noffence\t under\ts.  211,  I.P.C. The  counsel  has  in\tthis
\nconnection  expressly  stated  that  he\t does  not  want  to
\nprosecute the appellant for any offence mentioned in s. 479-
\nA,  Cr.P.C. The bar resulting from non-complaince with\tthat
\nsection would, therefore, be ineffective so far as  prosecu-
\ntion  for  other offences is concerned.\t In support  of\t his
\ncase   he  has\trelied\ton  ss.\t 195  (1  )  (b)  and\t476,
\nI.P.C.Section 195 so far as relevant reads
\nProsecution for contempt\t  (1) No Court shall
\nof lawful authority of\t\t   take cognizance
\npublic servants.\n<\/p>\n
(a) x x\t\t     x\t\t   x\t\t  x\nProsecution for certain\noffences against public\njustice.\n<\/pre>\n
\t      (b)   of\tany offence punishable under any  of
\n\t      the  following  sections\tof  the\t same  Code,
\n\t      namely, sections 193, 194, 195, 196, 199, 200,
\n\t      205,  2P6,  207- 208, 209, 210, 211  and\t228,
\n\t      when  such  offence is alleged  to  have\tbeen
\n\t      committed\t  in,\tor  in\trelation   to,\t any
\n\t      proceedings  in  any  Court,  except  on\t the
\n\t      complaint in writing of
\n(1) [1964] 7.  C.R. 237.\n<\/p>\n
83<\/span><\/p>\n
\t      such  Court  or of some other Court  to  which
\n\t      such Court is subordinate; or\n<\/p>\n
\t      (c) x\t       x\t   x\t\tx
\nSub-section  (3)  of  this section lays down  that  for\t the
\npurposes  of this section, a Court shall be deemed  to\tbe
\nsubordinate  to\t the court to which appeals  ordinarily\t lie
\nfrom-  the  appealable decrees or sentences of\tsuch  former
\ncourt.\t According  to the proviso, where-  appeals  lie  to
\nmore,  than  one  court, the  Appellate\t Court\tof  inferior
\njurisdiction shall be the court to which such Court shall be
\ndeemed\tto  be subordinate Section 476\twhich  provides\t for
\nprocedure  in cases mentioned in g. 195 so far\tas  relevant
\nfor our purpose lays down
\n\t\t\t     “476.   (1)  When\tany   Civil,
\n\t      Revenue or Criminal
\n\t\t\t\t\t  Court is,  whether
\n\t      on application
\n\t      Procedure\t  in  cases  made  to  it  in\tthis
\n\t      behalf or other
\n\t      mentioned in    wise,  of opinion\t    that  it
\n\t      is expedient in
\n\t      section 195.    the interests of justice\tthat
\n\t      an inquiry should be made into, any
\n\t      offence referred\t   to\tin   section\t195,
\n\t      subsection  (1),\tclause (b)  or\tclause\t(c),
\n\t      which appears to have been committed in or  in
\n\t      relation\tto a proceeding in that Court,\tsuch
\n\t      Court may, after such preliminary inquiry,  if
\n\t      any, as it thinks necessary, record a  finding
\n\t      to that effect and make a complaint thereof in
\n\t      writing signed by the presiding officer of the
\n\t      Court,  and  shall  forward  the\tsame  to   a
\n\t      Magistrate,  of the first class having  juris-
\n\t      diction, and may take sufficient security\t for
\n\t      the  appearance  of the  accused\tbefore\tsuch
\n\t      Magistrate  or if the alleged offence is\tnon-
\n\t      bailable may, if it thinks necessary so to do,
\n\t      send   the   accused  in\t custody   to\tsuch
\n\t      Magistrate,  and may bind over any  person  to
\n\t      appear   and   give   evidence   before\tsuch
\n\t      Magistrate
\n\t      Provided\tthat,  where the  Court\t making\t the
\n\t      complaint\t is a High Court, the complaint\t may
\n\t      be signed by such officer of the Court as\t the
\n\t      Court may appoint..\n<\/p>\n
\t      For  the\tpurposes  of  this  sub-section,   a
\n\t      Presidency Magistrate shall be deemed to be  a
\n\t      Magistrate of the first class.”\n<\/p>\n
Now,   in  the\tpresent\t case,\tthe   Additional    District
\nMagistrate on November 30, 1966 acquitted all the accused of
\nthe offences charged. He did not hold that the appellant had
\nfalsely charged.  Izhar Hussain with any offence, nor did he
\nconsider  it  expedient\t in  the  interest  of\tjustice\t  to
\nprosecute him for an offence under s. 211, I.P.C. As already
\nnoticed when in January, 1967, Izhar Hussain applied to that
\ncourt  under ss. 476\/479-A, Cr.P.C. for the  prosecution  of
\nthe appellant and two others, the court felt that in view of
\nthe decision in Kuppa Goundan’s case (supra) the proceedings
\nunder S. 476, Cr-P.C. were incompetent.\t Section 479-A\t has
\nnot  been  relied  upon by Shri Kohli  and  in\tour  opinion
\nrightly because on the admitted
\n84<\/span>
\nfacts in this case that section has not been complied  with.
\nIn  Kuppa  Goundan’s case (supra) it was observed  that\t the
\nscheme of S. 479-A, Cr.P.C. is to enact a special  procedure
\nfor  more expeditious and effective manner of  dealing\twith
\ncertain\t cases of perjury and fabrication of false  evidence
\nof  witness in the course of judicial proceedings.  But\t the
\nnecessary  condition for applying this section is  that\t the
\ncourt  must  form an opinion that a  particular\t witness  or
\nwitnesses is or are giving false evidence and at the time of
\ndelivering  its\t judgment record a finding to  that  effect.
\nThis  was not done in this case.  Now, by virtue of s.\t479-
\nA(6) no proceeding can be taken against Santokh Singh  under
\nss.  476  to 479 for giving false  evidence.   Shri  Kohli’s
\nargument,  as already noticed, is that the appellant is\t not
\nbeing prosecuted for giving false evidence as indeed that is
\nnot  permissible  now, but only for falsely  charging  lzhar
\nHussain in his evidence in court.  The short question posed,
\ntherefore,  is,\t if by giving false evidence  as  a  witness
\nagainst\t Izhar\tHussain the appellant can be  said  to\thave
\ncharged\t him  within the contemplation of s-211,  I.P.C.  If
\nthis  question is answered in the affirmative, then it\twill
\nhave  to  be  determined whether there is in  fact  a  false
\naccusation  and\t finally  whether it is\t expedient  in\tthe,
\ninterest  of justice on the facts and circumstances  of\t the
\npresent\t case to direct a complaint to be filed under s.  21
\n1,  I.P.C.  This  section as  its  marginal  note  indicates
\nrenders\t punishable false charge of offence with  intent  to
\ninjure.\t  The  essential ingredient of an offence  under  s.
\n211,  I.P.C. is to institute or cause, to be instituted\t any
\ncriminal  proceeding against a’ person with intent to  cause
\nhim  injury  or with similar intent to\tfalsely\t charge\t any
\nperson with having committed an offence, knowing that  there
\nis  no just or lawful ground for such proceeding or  charge.
\nInstituting   or   causing  to\tinstitute   false   criminal
\nproceedings  assume  false charge but false  charge  may  be
\npreferred  even when no criminal proceedings result.  It  is
\nfrankly conceded by Shri Kohli that the appellant cannot  be
\nsaid to have instituted any criminal proceeding against\t any
\nperson.\t  So,  that part of s. 211,  I.P.C.  is\t eliminated.
\nNow, the expression “falsely charges’.’ in this section, in
\nour  opinion,  cannot  mean  giving  false  evidence  as   a
\nprosecution  witness  against an accused person\t during\t the
\ncourse of a criminal trial.  “To falsely charge” must  refer
\nto the original or initial accusation putting or seeking  to
\nput  in motion the machinery of criminal  investigation\t and
\nnot  when  seeking  to\tprove the  false  charge  by  making
\ndeposition  in support of the charge framed in\tthat  trial.
\nThe words “falsely charges” have to be, read along with the
\nexpression “institution of criminal proceeding”.  Both these
\nexpressions,  being susceptible of analogous meaning  should
\nbe  understood\tto have been. used in their  cognate  sense.
\nThey  get  as  it were their colour and\t content  from\teach
\nother.\tThey seem to have been used in a technical sense  as
\ncommonly  understood in our criminal law.  The false  charge
\nmust, therefore, be made initially to a person in  authority
\nor  to\tsomeone\t who is in a position to  get  the  offender
\npunished  by  appropriate proceedings.\tIn other  words,  it
\nmust be’ embodied either in a complaint or in a report of  a
\ncognizable  offence to the police officer or to\t an  officer
\nhaving\t authority   over  the\tperson\tagainst\t  whom\t the
\nallegations are made.  The statement in order to  constitute
\nthe “charges” should be made with the intention and object
\n85<\/span>
\nof  setting  criminal  law in  motion.\t Statement  on\toath
\nfalsely\t supporting the prosecution case against an  accused
\nperson\tmore appropriately amounts to an offence  under\t ss.
\n193 and 195, I.P.C. and not under s. 21 1, I.P.C. We do\t not
\nthink that the offences contemplated by ss.  193\/195,I.P.C.
\non  the\t one  hand  and S. 211, I.P.C.\ton  the\t other\twere
\nintended by the legislature, in this context, to overlap  so
\nas  to make it optional whether to proceed under one or\t the
\nother.\tThe High Court was, therefore, in error in  thinking
\nthat  in  the present case the appellant’s  statement  as  a
\nwitness\t in the trial court, could be construed as a  charge
\nagainst\t lzhar\tHussain.  Once it is held  that\t no  offence
\nunder  s.  211, I.P.C. can be considered to have  been\tcom-
\nmitted,\t then no other question arises for, as\tconceded  by
\nShri  Kohli, Section 479-A would bar prosecution for  giving
\nfalse evidence.\n<\/p>\n
The High Court also seems to have committed serious error in
\nignoring  that in the appellant’s statement he\thad  clearly
\nstated\tthat  he  had not seen amongst\tthe  assailants\t the
\naccused Izhar Hussain present in the court.  In face of this
\nstatement,  there  was no question of the  appellant  having
\nmade any accusation against lzhar Hussain in his deposition.
\nIn  any\t event,\t considering the  entire  statement  of\t the
\nappellant  it  is not understood how it\t can  be  considered
\nexpedient   in\tthe  interest  of  justice  to\tdirect\t the
\nappellant’s prosecution.  Every incorrect or false statement
\ndoes   not  make  it  incumbent\t on  the  court\t  to   order
\nprosecution.  The court has to exercise judicial  discretion
\nin  the\t light\tof all the relevant  circumstances  when  it
\ndetermines  the\t question of expediency.  The  court  orders
\nprosecution in the larger interest of the administration  of
\njustice\t and not to gratify feelings of personal revenge  or
\nvindictiveness or to serve the ends of a private party.\t Too
\nfrequent  prosecutions for such offences tend to defeat\t its
\nvery  object.\tIt is only in glaring  cases  of  deliberate
\nfalsehood where conviction is highly likely, that the  court
\nshould\tdirect\tprosecution.  The High Court seems  to\thave
\nmisunderstood  the appellant’s evidence and has also  failed
\nto apply its mind to the question of expediency.   Reference
\nby the High Court to identification parade is also  somewhat
\ninappropriate.\t Identification at test parades could by  no
\nstretch\t be considered to amount to a false  charge  against
\nIzhar  Hussain\tas  contemplated  by  s.  211,\tI.P.C.\tSuch
\nidentification\tis not substantive evidence and it can\tonly
\nbe  used  as corroborative of the statement in\tcourt.\t The
\nidentification parade thus could not improve the prosecution
\ncase.\n<\/p>\n
Besides,  we entertain considerable doubt if the High  Court
\nhad at all jurisdiction to make an order of complaint as  it
\nhas done.  It was either the court which tried the  original
\noffences   or  a  court\t to  which  the\t trial\t court\t was
\nsubordinate,  that could make such an order.  The  court  of
\nthe  Additional\t District Magistrate would not\tseem  to  be
\nsubordinate to the High Court as provided by section 195(3),
\nCr-P.C.’  Kuldip  Singh v. State of Punjab(1).\t Two  courts
\nbelow having in their judicial discretion declined to direct
\nthe prosecution of the appellant, on revision the High Court
\nwas, in our view, not all justified in itself directing\t the
\nfiling of the complaint.  At best, if it considered
\n(1)  [1956] S.C.R. 125.\n<\/p>\n
86<\/span><\/p>\n
the  orders of the two courts below tainted with  a  serious
\nlegal  infirmity  or  manifest\terror  resulting  in   grave
\nmiscarriage of justice, it could have, after quashing  those
\norders,\t  sent\tthe  case  back\t to  the  trial\t court\t for
\nreconsideration of the matter in accordance with law’
\nAs  a  result  of  the\tforegoing  discussion,\twe  have  no
\nhesitation  in\tallowing this appeal and setting  aside\t the
\norder of. the High Court.\n<\/p>\n
S.C.\t\t\t    Appeal alloWed.\n87<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Santokh Singh vs Izhar Hussain And Anr on 25 April, 1973 Equivalent citations: 1973 AIR 2190, 1974 SCR (1) 78 Author: I Dua Bench: Dua, I.D. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-37064","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSantokh Singh vs Izhar Hussain And Anr on 25 April, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/santokh-singh-vs-izhar-hussain-and-anr-on-25-april-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santokh Singh vs Izhar Hussain And Anr on 25 April, 1973 - 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