Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.169 OF 2014
(Arising out of Special Leave Petition (Criminal) No.1221 of 2012)

Perumal …Appellant

Versus

Janaki …Respondent

JUDGMENT

Chelameswar, J.

1. Leave granted.

2. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of

the High Court of Madras, the unsuccessful petitioner

therein preferred the instant appeal.

3. A petition in C.M.P. No.4561 of 2010 (private

complaint) under section 200 of the Code of Criminal

Procedure, 1973 (hereinafter for short referred to as “the

Cr.P.C.”) filed by the appellant herein against the

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respondent came to be dismissed by the Judicial

Magistrate No.2 at Pollachi by his judgment dated 31 st

August 2010. Challenging the same, the abovementioned

Crl. R.C. was filed.

4. The factual background of the case is as follows:

5. The respondent was working as a Sub-Inspector in an

All-Women Police Station, Pollachi at the relevant point of

time. On 18th May 2008, one Nagal reported to the

respondent that the appellant herein had cheated her.

The respondent registered Crime No.18/08 under sections

417 and 506(i) of the Indian Penal Code (hereinafter for

short referred to as “the IPC”). Eventually, the

respondent filed a charge-sheet, the relevant portion of

which reads as follows:

“On 26.12.07, that the accused called upon the de-facto

complainant for an outing and while going in the night
at around 10.00 via Vadugapalayam Ittori route the
accused enticed the de-facto complainant of marrying
her and had sexual interaction several times in the
nearby jungle and on account of which the
complainant became pregnant and when she asked
the accused to marry him he threatened the
complainant of killing her if she disclosed the above
fact to anybody.

Hence the accused committed an offence punishable

u/s. 417, 506 (i) of IPC.”
[emphasis supplied]

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6. The appellant was tried for the offences mentioned

above by the learned Judicial Magistrate No.1, Pollachi.

The learned Judicial Magistrate by his judgment dated 15 th

March 2010 acquitted the appellant of both the charges.

7. It appears that the said judgment has become final.

8. In the light of the acquittal, the appellant filed a

complaint (C.M.P. No.4561 of 2010) under section 190 of

the Cr.P.C. on the file of the Judicial Magistrate No.2 at

Pollachi praying that the respondent be tried for an

offence under section 193 of the IPC. The said complaint

came to be dismissed by an order dated 31 st August 2010

on the ground that in view of sections 195 and 340 of the

Cr.P.C. the complaint of the appellant herein is not

maintainable.

9. Aggrieved by the said dismissal, the appellant herein

unsuccessfully carried the matter to the High Court.

Hence the present appeal.

10. The case of the appellant herein in his complaint is

that though Nagal alleged an offence of cheating against

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the appellant which led to the pregnancy of Nagal, such an

offence was not proved against him. Upon the registration

of Crime No.18/08, Nagal was subjected to medical

examination. She was not found to be pregnant. Dr.

Geetha, who examined Nagal, categorically opined that

Nagal was not found to be pregnant on the date of

examination which took place six days after the

registration of the FIR. In spite of the definite medical

opinion that Nagal was not pregnant, the respondent

chose to file a charge-sheet with an allegation that Nagal

became pregnant. Therefore, according to the appellant,

the charge-sheet was filed with a deliberate false

statement by the respondent herein. The appellant,

therefore, prayed in his complaint as follows;

“It is, therefore, prayed that this Hon’ble Court

may be pleased to take this complaint on file, try
the accused U/s. 193 IPC for deliberately giving
false evidence in the Court as against the
complainant, and punish the accused and pass
such further or other orders as this Hon’ble court
deems fit and proper.”

11. The learned Magistrate dismissed the complaint on

the ground that section 195 of the Cr.P.C. bars criminal

courts to take cognizance of an offence under section 193

of the IPC except on the complaint in writing of that Court

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or an officer of that Court in relation to any proceeding in

the Court where the offence under section 193 is said to

have been committed and a private complaint such as the

one on hand is not maintainable.

12. The High Court declined to interfere with the matter

in exercise of its revisional jurisdiction. The operative

portion of the order under challenge reads as follows:

“3. … This court is in agreement with the

conclusion of the court below in dismissing the
complaint. The complaint provided very little to
take action upon, particularly, where this court
finds that the respondent had not in any manner
tampered with the medical record so as to mulct
the petitioner with criminal liability. The wording in
the final report informing of the de facto
complainant having been pregnant can in the facts
and circumstances of the case, be seen only as a
mistake.

4. In the result, the criminal revision stands

dismissed.”

13. We regret to place on record that at every stage of

this matter the inquiry was misdirected.

14. The facts relevant for the issue on hand are that:-

(1) The appellant was prosecuted for the

offences under sections 417 and 506 (i) IPC.

(The factual allegations forming the basis of

such a prosecution are already noted earlier).

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 (2) The respondent filed a charge-sheet with

an assertion that the appellant was responsible

for pregnancy of Nagal.

(3) Even before the filing of the charge-sheet,

a definite medical opinion was available to the

respondent (secured during the course of the

investigation of the offence alleged against the

appellant) to the effect that Nagal was not

pregnant.

(4) Still the respondent chose to assert in the

charge-sheet that Nagal was pregnant.

(5) The prosecution against the appellant ended

in acquittal.

15. The abovementioned indisputable facts, in our

opinion, prima facie may not constitute an offence under

section 193 IPC but may constitute an offence under

section 211 IPC. We say prima facie only for the reason

this aspect has not been examined at any stage in the

case nor any submission is made before us on either side

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but we cannot help taking notice of the basic facts and the

legal position.

16. The offence under section 1931 IPC is an act of giving

false evidence or fabricating false evidence in a judicial

proceeding. The act of giving false evidence is defined

under section 191 IPC as follows:

“191. Giving false evidence.— Whoever, being legally

bound by an oath or by an express provision of law to
state the truth, or being bound by law to make a
declaration upon any subject, makes any statement which
is false, and which he either knows or believes to be false
or does not believe to be true, is said to give false
evidence.

Explanation 1.—A statement is within the meaning of

this section, whether it is made verbally or otherwise.

Explanation 2.—A false statement as to the belief of

the person attesting is within the meaning of this section,
and a person may be guilty of giving false evidence by
stating that he believes a thing which he does not believe,
as well as by stating that he knows a thing which he does
not know.”

It can be seen from the definition that to constitute an act

of giving false evidence, a person must make a statement

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Section 193. Punishment for false evidence.—Whoever intentionally gives false
evidence in any stage of a judicial proceeding, or fabricates false evidence for
the purpose of being used in any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term which may extended
to seven years, and shall also be liable to fine,

and whoever intentionally gives or fabricates false evidence in any other

case, shall be punished with imprisonment of either description for a term which
may extended to three years, and shall also be liable to fine.

Explanation 1.—A trial before a Court-martial; is a judicial proceeding.

Explanation 2.—An investigation directed by law preliminary to a

proceeding before a Court of Justice, is a stage of a judicial proceeding, though
that investigation may not take place before a Court of Justice.

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which is either false to the knowledge or belief of the

maker or which the maker does not believe to be true.

Further, it requires that such a statement is made by a

person (1) who is legally bound by an oath; (2) by an

express provision of law to state the truth; or (3) being

bound by law to make a declaration upon any subject.

17. A police officer filing a charge-sheet does not make

any statement on oath nor is bound by any express

provision of law to state the truth though in our opinion

being a public servant is obliged to act in good faith.

Whether the statement made by the police officer in a

charge-sheet amounts to a declaration upon any subject

within the meaning of the clause “being bound by law to

make a declaration upon any subject” occurring under

section 191 of the IPC is a question which requires further

examination.

18. On the other hand, section 211 of the IPC deals with

an offence of instituting or causing to be instituted any

criminal proceeding or falsely charging any person of

having committed an offence even when there is no just or

lawful ground for such proceeding to the knowledge of the

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person instituting or causing the institution of the criminal

proceedings.

19. Irrespective of the fact whether the offence disclosed

by the complaint of the appellant herein is an offence

falling either under section 193 or 211 of the IPC, section

195 of the Cr.P.C. declares that no Court shall take

cognizance of either of the abovementioned two offences

except in the manner specified under section 195 of the

Cr.P.C.:

“195. Prosecution for contempt of lawful authority of

public servants, for offences against public justice and for
offences relating to documents given in evidence.—(1)
No Court shall take cognizance—

x x x x x

(b) (i) of any offence punishable under any of the

following sections of the Indian Penal Code (45 of
1860), namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged to have
been committed in, or in relation to, any
proceeding in any Court, or

except on the complaint in writing of that Court or by

such officer of the Court as that Court may authorise in
writing in this behalf, or of some other Court to which
that court is subordinate.”

20. In the light of the language of section 195 Cr.P.C. we

do not find fault with the conclusion of the learned

Magistrate in dismissing the complaint of the appellant

herein for the reason that the complaint is not filed by the

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person contemplated under section 195 Cr.P.C. It may be

mentioned here that as a matter of fact the Court before

which the instant complaint was lodged is not the same

Court before which the appellant herein was prosecuted

by the respondent.

21. Under section 340(1) of the Cr.P.C., it is stipulated

that whenever it appears that any one of the offences

mentioned in clause (b) of sub-section (1) of section 195

appears to have been committed in or in relation to a

proceeding before a Court, that Court either on an

application made to it or otherwise make a complaint

thereof in writing to the competent Magistrate after

following the procedure mentioned under section 340 of

the Cr.P.C.2
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Section 340. Procedure in cases mentioned in section 195.—(1) When upon an
application made to it in this behalf or otherwise, any Court is of opinion that it is
expedient in the interests of justice that an inquiry should be made into any
offence referred to in clause (b) of sub-section (1) of section 195, which appears
to have been committed in or in relation to a proceeding in that Court or, as the
case may be, in respect of a document produced or given in evidence in a
proceeding in that court, such Court may, after such preliminary inquiry, if any,
as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused before
such Magistrate, or if the alleged offence is non-bailable and the Court
thinks it necessary so to do, send the accused in custody to such
Magistrate; and
(e) bind over any person to appear and give evidence before such
Magistrate.

(2) The power conferred on a Court by sub-section (1) in

respect of an offence may, in any case where that Court has neither made a
complaint under sub-section (1) in respect of that offence nor rejected an

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22. Admittedly, the appellant herein did not make an

application to the judicial magistrate No.1, Pollachi under

section 340 to ‘make a complaint’ against the respondent

herein nor the said magistrate suo moto made a

complaint. Therefore, the learned judicial magistrate No.2

before whom the private complaint is made by the

appellant had no option but to dismiss the complaint.

23. But the High Court, in our view, is not justified in

confining itself to the examination of the correctness of

the order of the magistrate dismissing the said private

complaint. Both Section 195(1) and Section 340(2) Cr.P.C.

authorise the exercise of the power conferred under

Section 195(1) by any other court to which the court in

respect of which the offence is committed is subordinate

application for the making of such complaint, be exercised by the Court to which
such former Court is subordinate within the meaning of sub-section (4) of section
195.

(3) A complaint made under this section shall be signed.—

(a) where the Court making the complaint is a High Court, by

such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by
such officer of the Court as the Court may authorise in writing in
this behalf.

(4) In this section, “Court” has the same meaning as in section

195.”

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to. (hereinafter referred to for the sake of convenience as

‘the original court’)

24. It can be seen from the language of Section 195(4),

Cr.P.C. that it creates a legal fiction whereby it is declared

that the original court is subordinate to that court to which

appeals ordinarily lie from the judgments or orders of the

original court. (hereinafter referred to as ‘the appellate

court’) In our view, such a fiction must be understood in

the context of Article 2273 of the Constitution of India and

Section 10(1) and 15(1) of Cr.P.C4. Article 227 confers the

power of superintendence on a High Court over all courts

and tribunals functioning within the territories in relation

to which a High Court exercises jurisdiction. Section 10(1)

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227. Power of superintendence over all courts by the High Court – (1) Every High Court shall
have superintendence over all courts and tribunals throughout the territories in relation to which it
exercises jurisdiction;
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of
any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks
and officers of such courts and to attorneys, advocates and pleaders practicing therein;
Provided that any rules made, forms prescribed or tables settled under clause (2) or
clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall
require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of
superintendence over any court or tribunal constituted by or under any law relating to the Armed
Forces.
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10. Subordinate of Assistant Sessions Judges—(1) All Assistant Sessions Judges shall be
subordinate to the Sessions Jduge in whose Court they exercise jurisdiction.

15. Subordination of Judicial Magistrates- (1) Every Chief Judicial Magistrate shall be
subordinate to the Sessions Judge and every other Judicial Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.

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and 15(1) of Cr.P.C. declare that the Assistant Sessions

Judges and Chief Judicial Magistrates are subordinate to

the Session Judge and other Judicial Magistrates to be

subordinate to the Chief Judicial Magistrate subject to the

control of the Session Judge. It may be remembered that

Section 195(4) deals with the authority of the superior

courts in the context of taking cognizance of various

offences mentioned in Section 195(1). Such offences are

relatable to civil, criminal and revenue courts etc. 5 Each

one of the streams of these courts may have their

administrative hierarchy depending upon under the law by

which such courts are brought into existence. It is also

well known that certain courts have appellate jurisdiction

while certain courts only have original jurisdiction.

Appellate jurisdiction is the creature of statute and

depending upon the scheme of a particular statute, the

forum of appeal varies. Generally, the appellate for a are

created on the basis of either subject matter of dispute or

economic implications or nature of crime etc.

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195 (3) – In clause (b) of sub-section (1), the term ‘Court’ means a Civil, Revenue or Criminal
Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared
by that Act to be a Court for the purposes of this section.

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25. Therefore, all that sub-section (4) of Section 195 says

is that irrespective of the fact whether a particular court is

subordinate to another court in the hierarchy of judicial

administration, for the purpose of exercise of powers

under Section 195(1), every appellate court competent to

entertain the appeals either from decrees or sentence

passed by the original court is treated to be a court

concurrently competent to exercise the jurisdiction under

Section 195(1). High Courts being constitutional courts

invested with the powers of superintendence over all

courts within the territory over which the High Court

exercises its jurisdiction, in our view, is certainly a Court

which can exercise the jurisdiction under Section 195(1).

In the absence of any specific constitutional limitation of

prescription on the exercise of such powers, the High

Courts may exercise such power either on an application

made to it or suo moto whenever the interests of justice

demand.

26. The High Courts not only have the authority to

exercise such jurisdiction but also an obligation to exercise

such power in appropriate cases. Such obligation, in our

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opinion, flows from two factors – (1) the embargo created

by Section 195 restricting the liberty of aggrieved persons

to initiate criminal proceedings with respect to offences

prescribed under Section 195; (2) such offences pertain to

either the contempt of lawful authorities of public servants

or offences against public justice.

27. A constitution Bench of this Court in Iqbal Singh

Marwah & Anr. v. Meenakshi Marwah & Anr., (2005) 4

SCC 370, while interpreting Section 195 Cr.P.C., although

in a different context, held that any interpretation which

leads to a situation where a victim of crime is rendered

remediless, has to be discarded 6. The power of

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23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a
complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is
conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This
shows that such a course will be adopted only if the interest of justice requires and not in every case.
Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the
effect that it is expedient in the interests of justice that enquiry should be made into any of the
offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by
weighing not the magnitude of injury suffered by the person affected by such forgery or forged
document, but having regard to the effect or impact, such commission of offence has upon
administration of justice. It is possible that such forged document or forgery may cause a very
serious or substantial injury to a person in the sense that it may deprive him of a very valuable
property or status or the like, but such document may be just a piece of evidence produced or given in
evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of
evidence on the broad concept of administration of justice may be minimal. In such circumstances,
the Court may not consider it expedient in the interest of justice to make a complaint. The broad
view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of
such forgery or forged document remedyless. Any interpretation which leads to a situation where a
victim of a crime is rendered remedyless, has to be discarded.

25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said
provision would also operate where after commission of an act of forgery the document is
subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh,
after preparing a forged document or committing an act of forgery, a person may manage to get a
proceeding instituted in any civil, criminal or revenue court, either by himself or through someone
set up by him and simply file the document in the said proceeding. He would thus be protected from
prosecution, either at the instance of a private party or the police until the Court, where the
document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one
due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation

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superintendence like any other power impliedly carries an

obligation to exercise powers in an appropriate case to

maintain the majesty of the judicial process and the purity

of the legal system. Such an obligation becomes more

profound when these allegations of commission of

offences pertain to public justice.

28. In the case on hand, when the appellant alleges that

he had been prosecuted on the basis of a palpably false

statement coupled with the further allegation in his

complaint that the respondent did so for extraneous

considerations, we are of the opinion that it is an

appropriate case where the High Court ought to have

exercised the jurisdiction under Section 195 Cr.P.C.. The

allegation such as the one made by the complainant

against the respondent is not uncommon. As was pointed

earlier by this Court in a different context “there is no rule

of law that common sense should be put in cold storage” 7.

Our Constitution is designed on the theory of checks and

balances. A theory which is the product of the belief that

all power corrupts - such belief is based on experience.

would he highly detrimental

to the interest of society at large.
7
Para 63 of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala &
Ors., 1985 (Supp.) SCC 144.

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29. The appeal is, therefore, allowed. The matter is

remitted to the High Court for further appropriate course

of action to initiate proceedings against the respondent on

the basis of the complaint of the appellant in accordance

with law.

………………………………………..CJI
(P. Sathasivam)
…………………………………..……J.
(J. Chelameswar)

New Delhi;
January 20, 2014.

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