Dr. S.L. Goswami Vs. the High Court of Madhya Pradesh at Jabalpur - Court Judgment

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criminal - tampering with evidence - sections 120 and 466 of indian penal code, 1860 and sections 195 and 196-a of criminal procedure code, 1973 - appellant was charged for tempering with deposition of witness - magistrate committed appellant along with two other accused to session court to take their trial for offences under section 466/120-b - appellant sought quashing of order of magistrate committing appellant to session for trial under section 466/120-b - he contended that magistrate erred in taking cognizance of an offence under section 466/120-b without sanction of the government under section 196-a(2) - further contended that offence was not committed in any court in respect of a document produced or given in evidence in such proceeding as required under section 195(i)(c) - for non-cognizable offence under section 466 an order in writing consenting to the initiation of proceedings is necessary by the state government - for offence under section 195(1)(c) the offence should have been committed by a party to any proceeding and that it should be in respect of a document produced or given in evidence in such proceeding - facts revealed that the document was not produced nor given in evidence in the high court proceedings - held, order of magistrate liable to be set aside as no such order consenting to the initiation of proceedings was passed - appeal allowed. - [ b.p. sinha, c.j.,; j.c. shah,; k. subba rao,; m. hidayatullah and; n. rajagopal, jj.] on the receipt of a police report, the magistrate first class akola took cognizance of offences under ss. 406, 408, 409, 120b and 477a indian penal code against the appellants. the investigating officer furnished the accused persons with copies of documents which are required by s. 173(4) of the code of criminal procedure to be furnished. at the commencement of the enquiry under ch. xviii of the code of criminal procedure, the public prosecutor informed the court that the evidence in the case being " mainly documentary" the prosecution did not desire to examine any witnesses at the stage of the committal proceeding. after the arguments on behalf of the state and the accused were heard, an application was submitted by the prosecutor that the accused be examined by the magistrate under s. 207-a(6) of the code of criminal procedure. the application was granted by the magistrate after rejecting the objections raised by some of the accused and the accused were i ordered to remain present in court for examination under s. 207-a sub-ss. (6) and (7): against that order the appellants moved the high court in revision but without success. it was urged on behalf of the appellant that in an enquiry for commitment to the court of session the accused person can be asked to explain circumstances appearing against him only from the oral evidence recorded under s. 207-a(4), and not from circumstances appearing from the documents furnished under s. 173(4) of the code,held (per b.p. sinha, c.j. k. subba rao and j.c. shah, jj.) that the legislature has used the expression "evidence" at three places in cl. (6) of s. 207a of the code of criminal procedure. in the first clause of sub-s. (6) the evidence is, as the statute expressly enacts "the evidence referred to in sub-s. (4)" and the expression "that such evidence and documents disclose no grounds for committing" indicates, having regard to the context that the evidence referred to in sub-s. (4) alone is comprehended thereby. but in the context of the explanation of the accused for the purpose of enabling him to explain any circumstances appearing against him, the legislature has used the expression "in the evidence against him", which is not expressly qualified by reference to sub-s. (4) nor does any implication arise from the context which would suggest that it has a limited content. (ii)the legislature did not intend by using the expression "examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him" that the opportunity to be given to the accused for explaining circumstances appearing from the oral evidence. such a construction of the clause, by putting a restricted interpretation upon the meaning of the word 'evidence' would in many cases involve great prejudice to the accused. the circumstances appearing against the accused would in a large majority of cases be from the statements recorded under s. 161(3) under s. 164 and other documentary evidence referred to in s. 173(4) and if the accused is not to be given an opportunity to explain those circumstances, to a large extent the judicial character of the proceeding would be impaired. the accused may have a complete answer to the documents on which the prosecution seeks to rely. but if by the words used in cl. (6) the magistrate is prohibited from examining him in respect of those documents the provision might frequently operate oppressively against the accused. the scheme of s. 251a of the code which was brought on the statute book simultaneously with s. 207-a by act 26 of 1955, also furnishes an indication that in the examination of the accused for enabling him to explain circumstances appearing in the evidence against him, documents referred to in s. 173(4) cannot he excluded. (iii)section 207a(6) contemplates examination only for the purpose of explaining any circumstances appearing against the accused. declining to avail himself of such an opportunity and reserving his right to make a defence at the trial do not amount to refusal to answer a question and no presumption can arise under illustration (h) to s. 114 of the evidence act against such refusal. the scheme of cl. (6) of s. 207a is not the same as the scheme of s. 342 of the code of criminal procedure for the reason that under the latter section the court can ask the accused any general question to explain any circumstances appearing against him. (iv)normally in a criminal trial, the court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended 'code the legislature has in s. 207-a prescribed a special procedure in proceedings for commitment of the accused. the record consists of the oral evidence recorded under sub-s. (4) of s. 173, and it would be difficult to regard only those documents which are duly proved or which are admissible without proof as "evidence" within the meaning of cl. (6) and not the rest. section 3 of the evidence act also supports that proposition. the expression "evidence" as defined in s. 3 of the evidence act means and includes all statements which the court permits or requires to be made before it by witnesses and all documents produced for the inspection of the court. there is no restriction in this definition to documents which are duly proved by evidence. (per ayyangar and hidayatullah jj. (dissenting): the word 'evidence, in sub-s. (6) of s. 207a of the code of criminal procedure is confined to the oral evidence of the prosecution witnesses. the word 'evidence' occurs three times in this sub-section. in the opening words of the sub- section where it occurs first referring, as they do, specifically to the evidence recorded under sub-s. (4) the word is obviously used only in the sense of oral evidence recorded under sub-s. (4) together with the cross- examination and reexamination permitted by sub-s.- (5). this is followed by the words 'the magistrate has considered all the documents referred to in s. 173'. documents therefore are treated here as a distinct category of material distinct from "evidence" and the sub-section proceeds on the existence of a dichotomy between these two species of material which the magistrate has to take into account before ordering committal. if this dichotomy and this distinction between 'evidence" and documents underlie the texture of the entire subsection, it could not be disputed that the word 'evidence' on the second occasion when it occurs in sub-s.(6) has to be read as meaning only the evidence of witnesses examined under sub-s. (4). the last place where the word 'evidence' occurs in the sub- section is the passage reading 'such magistrate shall if he is of opinion that such evidence and documents disclose no grounds for omitting the accused persons for trial'. it is clear that here the word 'documents' denotes the documents referred to earlier namely those in s. 173 and these are again distinguished from 'evidence'. here also there cannot be any doubt that the word 'evidence' is a reference to the evidence recorded under sub-s. (4). sub-sections (4), (6) and (7) draw a clear and sharp distinction between 'evidence' and 'the documents' referred to in s. 173 of the code of criminal procedure. no importance should be attached to the absence of the word ,such' and the use instead of the word 'the' in the relevant clause. the definite article 'the' obviously in the context refers to the 'evidence' already referred to in the opening words of the subsection, namely that recorded under sub-s. (4). ramdas kikabhai v. state of bombay, a.i.r. 1960 bom. 124, not relied on. re macmanaways, [1951] a.c. 161, referred to. (ii)the magistrate would have no jurisdiction to examine an accused under s. 342(1) of the code (a) either when no oral evidence for prosecution has been recorded or (b) in respect of matters about which there is no evidence adduced in the sense in which the expression is used in the indian evidence act for enabling the court to hold any fact in issue or a relevant fact to be proved. the same principle applies as to the circumstances in which an accused can be examined by the magistrate under s. 207-a(6). where there is no evidence recorded under sub-s.(4) of s. 207-a, the magistrate has no jurisdiction to examine an accused under s. 207-a(6). in the present case the magistrate has no jurisdiction to direct the accused to appear before him for examination. bachchan lai v. state, a.i.r. 1957 all. 184 and bahawala v. crow n, i.l.r. 6 lah. 183, relied on. (iii)the accused should be examined under s. 207a(6) with reference to what appears against him in evidence legally admissible before the court, while he is not to be required to commit himself by his answers in respect of matters which would be proved against him only at the trial and as regards which he would be examined later under s. 342(1) of the code. interpreted otherwise the section would give a good chance for fishing expedition and of modulating the prosecution case to destroy the accused's explanation at the appropriate stage. the accessed cannot be asked under sub- s. (6) with reference to documents mentioned in s. 173(4) of the code unless those are legally proved. if without evidence, properly so called, a magistrate examines an accused, he would be converting himself into an investigating agency and there is therefore every possibility of the accessed being prejudiced and that might be the very reason why the sub-section has been framed in a manner to avoid the result. the position is, of course different under s. 251a(2) where the examination is by virtue of the statute and so it stands in a class apart. (iv)the magistrate has no jurisdiction to ask question under sub-s. (6) with the reference to documents mentioned in s. 173(4) of the code as they are not evidence under sub-s. (4) of s. 207-a of the code. the expression 'evidence' as defined in s. 3 of the evidence act gives merely the dictionary meaning of. the word and it has no application for interpreting the word 'evidence' in sub-s.(6). the expression 'evidence' is used throughout the criminal procedure as meaning judicial evidence i.e. oral evidence tested by cross-examination if any and documents which have been proved and which are relevant and admissible. the expression 'documents produced for inspection of the court' under s. 3 of the evidence act means merely "for inspection of the court" and the court cannot base its findings on the contents of such documents. (v)the court will be entitled under illustration (h) to s. 114 of the evidence act to draw adverse inference for refusal to answer question put under s. 207a(6) to the accused. (vi)the rule of interpretation which is applicable was stated by lord radcliffe: "the meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. the primary duty of a court of law is to find the natural meaning of the words in the context in which they occur, the context including any other phrases in the act which may throw light on the sense in which the makers of the act used the words in dispute." re macmanaway in re, [1951] a.c. 161, relied on.   - the appellant was convicted and an appeal against his conviction before the high court failed. the magistrate by a common order on 15th november, 1971 committed the appellant as well as two others to the sessions court to take their trial for offences under section 466 read with section 120b of the indian penal code. it is, therefore, necessary to determine whether the offence complained of is one that falls under section 195(4) in which case consent for initiation of the proceedings is not necessary. state of bihar (supra) section 466 would be included within the purview of section 195(1)(c). we are, therefore, of the view that the decision that section 466 of the indian penal code is not covered by clause (b) or clause (c) of section 195(1) is erroneous and not good law. the appellant was a party to a proceeding in the high court when the appeal was heard but the document complained of as having been tampered with i. the requirements of section 195(1)(c) having not been satisfied a complaint by the court in writing is not necessary.p.s. kailasam, j.1. this appeal is preferred by dr. s.l. goswami by special leave granted by this court against the judgment of the high court of madhya pradesh at jabalpur in criminal revision no. 709 of 1971. criminal revision no. 709 of 1971 was filed by the appellant before the high court for quashing the order of the magistrate, 1st class, jabalpur committing the appellant to sessions for trial under section 466 read with section 120b of the indian penal code.2. the appellant was prosecuted before the special judge, jabalpur, in criminal case no. 5 of 1967 for an offence under section 5(1)(d) of the prevention of corruption act, 1947, in connection with the defalcations of government funds. in that case one dr. s.c. barat was examined as a defence witness. the appellant was convicted and an appeal against his conviction before the high court failed. the appellant obtained special leave from this court to appeal against the order of the high court. during the pendency of the appeal before the supreme court the high court was required to prepare a paper book for use in the supreme court. it is alleged that when the paper book was being prepared in the supreme court section of the high court the appellant dr. goswami entered into a conspiracy with two of the translators and tampered with the original deposition of dr. s.c. barat, d.w. 1. the additional registrar of the high court filed a complaint before the first class magistrate, jabalpur, against the appellant for an offence under section 466 read with section 120b of the indian penal code. the case was taken on file by the magistrate as criminal case no. 1924 of 1971. against the two persons who were alleged to have conspired with the appellant in tampering with the deposition of dr. barat a challan was filed by the police before the same first class magistrate. the magistrate by a common order on 15th november, 1971 committed the appellant as well as two others to the sessions court to take their trial for offences under section 466 read with section 120b of the indian penal code. the appellant and another with whom we are not concerned preferred a revision petition against the order of his committal before the high court. the high court dismissed the revision filed by the appellant and hence this appeal.3. the main contentions that are raised in this appeal are: (i) the magistrate erred in taking cognizance of an offence under section 466 of the indian penal code read with section 120b, indian penal code, without sanction of the government under section 196a(2) of the criminal procedure code; and (2) the offence, if any, was not committed in any court in respect of a document produced or given in evidence in such proceeding as required under section 195(i)(c) of the crpc.4. we will take up the first contention urged by the learned counsel for the appellant, namely that the trial court was in error in taking cognizance of the offence without a complaint by the state government when the offence charged is one of conspiracy under section 120b of the indian penal code as required under section 196-a(2) of the criminal procedure code. section 196-a(2) reads as follows:196-a. no court shall take cognizance of the offence of criminal conspiracy punishable under section 120b of the indian penal code.(1) * * *(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the state government, or a chief presidency magistrate or district magistrate empowered in this behalf by the state government had by order in writing consented to the initiation of the proceedings; provided that where the criminal conspiracy is one to which the provisions of sub-section (4) of section 195 apply no such consent shall be necessary.5. section 466 deals with a non-cognizable offence and the sub-clause (2) to section 196a provides that where the object of the conspiracy is to commit a non-cognizable offence an order in writing consenting to the initiation of proceedings is necessary by the state government or the chief presidency magistrate or the district magistrate empowered in this behalf by the state government. no such consent in writing was obtained in this case. an exception to this requirement is made by the proviso which states that if the criminal conspiracy is one to which the provisions of sub-section (4) of section 195 apply no such consent shall be necessary. it is, therefore, necessary to determine whether the offence complained of is one that falls under section 195(4) in which case consent for initiation of the proceedings is not necessary.6. section 195(1)(c) and section 195(4) which are necessary for the discussion may be extracted.195. (1) no court shall take cognizance-(a) * * *(b) * * *(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same code, when such offence is alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such court, or of some other court to which such court is subordinate.(2) * * *(3) * * *(4) the provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit.(5) * * *sub-section (4) makes the provisions of sub-section (1) with reference to the offences named applicable to criminal conspiracy to commit such offences also. if the offence falls under provisions of sub-section (1) to section 195 then criminal conspiracy to commit such offences would also fall under section 195(1) and require the complaint in writing by the court before the offence can be taken cognizance of. the requirements of section 195(1)(c) are:(1) the offence must be one as described in section 463 or punishable under sections 471, 475 or 476 of the i.p.c.(2) such offences should be alleged to have been committed by a party to any proceeding in any court; (3) such offence should be in respect of a document produced or given in evidence in such proceeding.the offence for which the appellant is committed to take his trial is that there was consent of the appellant also in committing the conspiracy for committing forgery of the record by tampering the evidence of dr. barat while the records were being prepared by the high court for being sent to the supreme court for use in the appeal pending before the supreme court.7. the first requirement is that the offence should be one as described in section 463 or punishable under section 471, section 475 or section 476 of the indian penal code. it was submitted that as section 466, indian penal code, is not one of the sections mentioned, the offence will not fall under the provisions of section 195(1)(c) and the section will not apply. in support of this view a decision of this court in govind mehta v. state of bihar [1971] supp. s.c.r. 777, was relied on. in that case, on a complaint by the district public prosecutor the appellant before this court was committed to the sessions to take trial under sections 167, 466 and 467 of the indian penal code. one of the contentions raised before this court was that the offence under section 466, indian penal code, is not covered by clauses (b) and (c) of section 195(1) and therefore section 195 does not operate as a bar to taking cognizance of an offence under section 466, indian penal code. this court after agreeing with the view of the high court that section 195(1)(b) or (c) is no bar to the magistrate taking cognizance for an offence under section 167 observed: 'the offence under section 466 of the penal code is, admittedly, not covered by clause (b) or clause (c) of section 195(1) of the code. therefore, that section does not operate as a bar in respect of this offence.' again at p. 785 this court observed: 'section 463 of the penal code is, no doubt, taken in by clause (c) of section 195(1) of the code. even on the basis that section 465 of the penal code will also be covered by clause (c) as the offence under section 463 is dealt with therein, nevertheless, clause (c) will not operate as a bar to the jurisdiction of the magistrate in taking cognizance of the said offence as the offence is not alleged to have been committed 'by a party to any proceeding in any court...' we have also referred to the fact that the appellant has been committed only for the offence under sections 167, 466 and 471 of the penal code. section 465 of the penal code is not the subject of the committal order.' we have given our careful consideration to the view expressed in the above decision that section 466 of the indian penal code is not covered by clause (c) of section 195(1) of the criminal procedure code. we regret our inability to subscribe to this view. at p. 785 of the report the court took the view that though section 465 of the indian penal code is not specifically mentioned in section 195(1)(c) of the criminal procedure code as the offence under section 463 indian penal code is dealt with in section 465, indian penal code, clause (c) of section 195(1) will not operate as a bar to the magistrate taking cognizance of the offence. the court, though section 465 is not specifically mentioned in section 195(1)(c), held that section 195(1)(c) is applicable as an offence under section 463 is dealt with under section 465, indian penal code. on the same reasoning section 466 should also be held to come within the purview of section 195(1)(c), criminal procedure code, as the offence under section 463 is dealt with in section 466. section 463, indian penal code, defines forgery. the elements of forgery are: (1) the making of a false document or part of it; (2) such making should be with such intention as is specified in the section. section 464 states when a person is said to make a false document which is one of the requirements under section 463. section 465 provides the punishment for an offence under section 463. section 466 is an aggravated form of forgery in that the forgery should relate to a document specified in the section. one of the documents specified is a document purporting to be a record or proceeding of or in a court of justice. section 466, indian penal code, is therefore an offence as described in section 463 which is committed in relation to a record or proceeding of or in a court of justice. the offences that fall within the purview of section 195(1)(c) are offences described in section 463 and offences punishable under sections 471, 475 or 476 of the indian penal code. the language of section 195(1)(c) is very significant for while referring to sections 474, 475 or 476, indian penal code, it uses the word punishable, in the case of section 463 the words used are the 'offences described in section 463'. an offence under section 466 is an offence which falls within the description of section 463 as the offence under section 463 is dealt with therein. section 195(1)(a) of the criminal procedure code uses the words 'of any offence punishable under section 172' while in clause (b) the words used are 'offence punishable under any of the following sections' mentioned therein. in clause (c) as already pointed out the words used are 'of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same code'. thus a clear distinction is maintained in the section between offences punishable under various sections mentioned and the offence described in section 463. even on the test laid down by this court in govind mehta v. state of bihar (supra) section 466 would be included within the purview of section 195(1)(c). we are, therefore, of the view that the decision that section 466 of the indian penal code is not covered by clause (b) or clause (c) of section 195(1) is erroneous and not good law. the question of law was not considered and the decision was reached on an admission made by the parties.8. we will now deal with the other requirements of section 195(1)(c) namely that the offence should be alleged to have been committed by a party to any proceeding and that it should be in respect of a document produced or given in evidence in such proceeding. it is admitted that the appellant was a party in the appeal that he preferred against his conviction before the high court but the appeal was decided against him and the conviction confirmed. special leave was granted against his conviction and for hearing of the appeal before the supreme court the paper book was being prepared by the high court. it was during that time that it is alleged that the appellant entered into a conspiracy and tampered with the evidence of one of the defence witnesses which is a record of the court. the appellant was a party to a proceeding in the high court when the appeal was heard but the document complained of as having been tampered with i.e. the evidence of the defence witness, was not produced or given in evidence in the appeal before the high court. the document was certainly net produced or given in evidence in the high court proceedings. the alleged tampering was after the hearing of the appeal was concluded. no doubt, the tampering was in a proceeding in relation to the preparation of the record whether such tampering would be in relation to a proceeding in supreme court in respect of a document produced or given in evidence before it does not arise for consideration before us as the complaint in the case is filed only by the high court. in abdul khader and ors. v. meera saheb i.l.r. 15 md. 224 a bench of the madras high court held that where a decree against certain defendants had been passed upon the oath of the plaintiffs and where the documents alleged to be forgeries have been put into court but were not given in evidence it would not be an offence committed by a party to any proceeding in any court in respect of a document given in evidence in such proceeding though the documents were put in court in a suit pending before it but were not given in evidence subsequent to this decision section 195(1)(c) was amended so as to include documents 'produced' in addition to documents given in evidence. in pendyala subbarayudu v. (gudivada) gopayya a.i.r. 1932 mad. 290 if was held that it was indispensable that the offence committed must in some manner have affected the proceedings or had been designed to effect them or come to light in the course of them but an offence committed after their close is wholly outside the scope of the pro-vision. we agree with the view expressed in the decision. in nirmaljit singh hoon v. the state of west bengal and anr. : [1973]2scr66 it was held that a document produced in a proceeding before the court during the investigation by the police ordered under section 156(3) of the criminal procedure code would not be a document produced in a proceeding before the court so as to attract the ban under section 195(1)(c) of the criminal procedure code. this court in a recent decision in legal remembrancer of government of west bengal v. haridas mundra : 1976crilj1732 held that the requirement of section 195(1)(c) is that the document in question should be produced or given in evidence in the proceeding before the court. we find on the facts of the case that it has not been established that the document was produced or given in evidence in a proceeding before the court. the requirements of section 195(1)(c) having not been satisfied a complaint by the court in writing is not necessary. equally, under sub-section (4) to section 195 relating to criminal conspiracy to commit such offence a complaint by the court is not necessary. therefore, section 196-a(2) is attracted and a complaint by the state government or the chief presidency magistrate or a district magistrate compowered in this behalf by the state government in writing consenting to the initiation of the proceedings for an offence under section 120b, indian penal code is necessary. as in this case no such order consenting to the initiation of proceedings was passed we accept the contention of the learned counsel for the appellant that the magistrate had no jurisdiction to take cognizance of the offence against the appellant. in the result, we allow the appeal, reverse the judgment of the high court and quash the order of committal passed by the magistrate. first class, jabalpur.