CENTRAL BUREAU OF INVESTIGATIONversusM. SIVAMANI

                        [2017] 7 S.C.R. 509



           CENTRAL BUREAU OF INVESTIGATION                             A
                                 v
                          M. SIVAMANI
              (Criminal Appeal Nos.1261-1262 of2017)
                         AUGUSTOl,2017                                 B

 (ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.J
       Code of Criminal Procedure, 1973 - s.195(l)(a)(i) - Bar
under - On a challenge by insurer against the award passed in
insurance claim petition, High Court ordered investigation by CBI C
into allegation that claim was false - After investigation. CBI filed
charge sheet - Respondent filed petition pleading bar
u/s.[95(l)(a)(i) on the ground that cognizance in respect of offence
uls.182 /PC could not be taken except "on the complaint in writing
of public servant concerned or of some other public servant to whom
he is administratively subordinate - Trial court dismissed the petition D
- On revision, High Court reversed the order of trial court - On
appeal. held: The direction of the High Court is at par with the
direction of an administrative superior public servant to file a
complaint in writing in terms of the statutory requirement - The
protection intended by s.195 against a private person filing a E
frivolous complaint is taken care of when the High Court finds that
 the matter was required to be gone into in public interest - Such
 direction cannot be rendered futile by invoking s.195 to such a
situation - Once the High Court directs investigation into a specified
offence mentioned in s.195, bar under s.195(/)(a) cannot be
pressed into service - Penal Code, 1860 - s.182.                        F
      Allowing the appeals, the Court
      HELD : While the bar against cognizance of a specified
offence is mandatory, the same has to be understood in the context
of the purpose for which such a bar is created. The bar is not
intended to take away remedy against a crime but only to protect       G
an innocent person against false or frivolous proceedings by a
private person~ The expression "the public servant or his
administrative superior" cannot exclude the High Court. It is
clearly implicit in the direction of the High Court that it was
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                                 509
510           SUPREME COURT REPORTS                      [2017] 7 S.C.R.



A necessary in the interest of justice to take cognizance of the
  offence in question. Direction of the High Court is at par with
  the direction of an administrative superior public servant to file a
  complaint in writing in terms of the statutory requirement. The
  protection intended by the Section against a private person filing
B a frivolous complaint is taken care of when the High Court finds
  that the matter was required to be gone into in public interest.
  Such direction cannot be rendered futile by invoking Section 195
  to such a situation. Once the High Court directs investigation
  into a specified offence mentioned in Section 195, bar under
  Section 195(l)(a) cannot be pressed into service. The view taken
C by the High Court will frustrate the object of law and cannot be
  sustained. [Para 11) [516-E-H; 517-A)
            State of U.P. v. Mata Bhikh (1994) 4 SCC 95 : [1994( 2
            SCR 368; Iqbal Singh Marwah v. Meenakshi Marwah
            (2005) 4 SCC 370 : [2005) 2 SCR 708; Peruma! v.
D           Janakai (2014) 5 SCC 377 : [2014) 1 SCR 591; M.S.
            Ah!awat v. State of Haryana (2000) 1 SCC 278 : [1999]
            4 Suppl. SCR 160 - referred to.
                           Case Law Reference
      [1994( 2 SCR 368               referred to            Paras
 E
      [2005) 2 SCR 708               referred to            Para 9
      [2014) 1 SCR 591               referred to            Para 9
      [1999) 4 Suppl. SCR 160        referred to            Para 10

 F
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos. 1261-1262 of2017.
            From the Judgment and Order dated 16.10.2015 of the High Court
      of Judicature at Madras in Criminal Revision Case No. 2 of 2009 and
 G    M. P. No. 1 of2009.
            Ms.Pinky Anand, ASG, Kailesh Vasudev, Sr. Adv., Ms.Alka
      Agrawal, Mukesh Kumar Maroria, Hemant Arya, Advs. for the
      Appellant.

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  CENTRAL BUREAU OF INVESTIGATION v. M. SIVAMANI                           511


      Basant R., Sr. Adv. Senthil Jagadeesan, Ms. Shruti Iyer, Karthik     A
Ashok, ArunAnbumani, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      ADARSH KUMAR GOEL, J. 1. These appeals have been
preferred against Order dated 16'" October, 2015 of the High Court of
judicature at Madras in Criminal Revision Case No.2 of2009 and M.P.        B
No.1 of 2009. The High Court has quashed the proceedings against the
respondent in C.C. No.15 of2007 pending before the Additional Special
Judge for CBI cases, Chennai.
       2. Facts stated in the charge sheet filed by the appellant-CBI
against the respondent are that a claim petition was filed before the C
Motor Accident Claims Tribunal (MACT), Cuddalore seeking
compensation of Rs.22,00,000/- for death of Mohamed Farooque in a
road accident on 11 m October, 2002. The MACT partly upheld the
claim and awarded Rs.14,97,000/-. On appeal of the National Insurance
Company (Insurance Company), the Madras High Court ordered D
investigation by CBCID into the allegation that the claim was false.
After investigation, the CBCID filed charge sheet: The matter was
later taken over by CBI under the directions of the Madras High Court
which led the CBI to file the impugned -charge sheet under Sections
120-B r/w 182, 420, 468, 468 r/w 471 !PC and 13(2) r/w 13(i)(d) of
Prevention of Corruption Act, 1988 r/w 511 IPC against A 1 to A9. The E
respondent is A-5. According to the CBI, the Insurance Company was
cheated by A-1 by making false claim in connivance with the other
accused. Mohamed Farooque sustained injuries by falling on his own
from a scooter and not in accident as alleged. Different accused were
given different roles in conspiracy. The role given to the respondent, F
who is an advocate, is of misrepresentation and producing false evidence,
knowing the true facts.
      3. During pendency of proceedings on the charge sheet, the
respondent moved a petition pleading barunder Section 195(1 )(a)(i) CrPC
by submitting that cognizance in respect of offence under Section 182      G
IPC could not be taken except "on the complaint in writing of the public
servant concerned or of some other public servant to whom he is
administratively subordinate." Charge sheet by CBI was not such a
complaint. The trial court dismissed the petition.

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512            SUPREME COURT REPORTS                          [2017] 7 S.C.R.



A           4. On a revision before the High Court, the High Court reversed
      the order of the trial court. It was held:
            " .... Since Section 182, IPC is found in the final report, a
            complaint in writing from the competent authority is very much
            essential and no deviation can be taken. Further. in Section
B           J95(J)(a)(iii), it is mentioned that if there is any criminal
            conspiracy to commit such offence, complaint in writing by
            the competent authority is necessary. Jn the instant case, in
            the final report, it has been clearly stated that all accused
            have contrived themselves and agreed to perform the said
            act. Further. since the accused have been facing a charge
 c          under Section 120-B, JPC, the Court can very well come to a
            conclusion that each accused is having vicarious liability.
            Under the said circumstances, the defence taken on the side
            of the respondent is sans merit. it has already been pointed
            out that in respect of the offences mentioned in Section
 D          195(J)(a)(i), a complaint in writing is very much essential.
            Further. as stated supra, in the instant case, Section 120-B is
            also available. Under the said circumstances also, a written
            complaint is very much essential as per the provisions of
            Section l 95(l)(a)(i) and (iii) of O:P.C. The Court below has
            given a finding to the effect that the High Court has directed
 E          the CBI to conduct investigation and.file a final report and
            the same has been done. It is pertinent to note that the order
            passed by the High Court is not at all sufficient to flout/bypass
            the mandatory provision of Section 195, O:P.C. Under such
            circumstances, the contentions put forth on the side of the
 F          respondent are not having any substance. ft has already been
            discussed in detail that the reasons given by the Court-below
            for dismissing the present petition are totalty against the
            existing law and the same can be eschewed. "
            5. We have heard learned counsel for the parties.
 G           6. It is submitted on behalf of the appellant that it was on account
      of element of public interest that the High Court directed CBCID to look
      into the allegation relating to bogus claim. By a subsequent order dated
      I" March, 2006 in W.P. Nos.7389, 39956 and 39968 of2005, further
      direction was given to handover the matter to the CBI in following terms:
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   CENTRAL BUREAU OF INVESTIGATION v. M. SIVAMANI                           513
              [ADARSH KUMAR GOEL, J.]

        "We are, however. re.faining from entering upon the details A
      lest it may likely to prejudice either party, but we think that
      since the accusations are directed mainly against the local
      police officials, it is desirable to entrust the investigation of
      the matter to an independent agency like the CBI so that all
      concerned including the Insurance Companies may feel B
      assured that an independent agency is looking into the matter
      and that would lend the final outcome of the investigation
      credibility. M1'. Somayaji may be right in saying that the local
      police are canying out the investigation faitl?fi1lly, but the
      same will lack credibility, since the allegations are mainly
      against the Police Department. There.fore, in our opinion, it C
      would be advisable and desirable as well as in the interest of
      justice to entrust the investigation to the CBI forthwith in
      respect of the complaints filed by the National Insurance
      Company as well as other Insurance Companies.
        We accordingly direct that the CBI shall investigate into the       D
      said complaints filed by the Insurance Companies as well as
      complaints relating to the use of.fake FIRs by different police
      stations. ... ... ... "
      In view ofabove, on correct interpretation of the provision, bar of
Section 195 cannot apply in view of direction of the High Court.            E
       The question is whether there is non-compliance of Section
195( I )(a)(i) Cr PC in court taking cognizance of the offence in
question, i.e. Section 182 !PC.
      7. 'section 195(1) CrPC is as follows:
                                                                            F
       "195. Prosecution for contempt of lawfi1f authority of public
      servants, for offences against public justice and.for offences
      relating to documents given in evidence.-(1) No court shall
      take cognizance-
      (a)(i) of any offence punishable under Sections 172 to 188
                                                                            G
      (both inclusive) of the Indian Penal Code (45 of 1860), or
      (ii) of any abetment of or attempt to commit, such offence, or
      (iii) of any criminal conspiracy to commit such olJence,

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514            SUPREME COURT REPORTS                          [2017] 7 S.C.R.



A           except on the complaint in writing of the public servant
            concerned or of some other public servant to whom he is
            administratively subordinate;
            (b)(i) of any offence punishable under any of the following
            sections of the Indian Penal Code (45 of 1860), namely,
B           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
            (ii) of any offence described in Section 463, or punishable
 c          under Section 471, Section 475 or Section 476, o.f the said
            Code, when such o.ffence is alleged to have been committed
            in respect of a document produced or given in evidence in a
            proceeding in any court, or
            (iii} ofany criminal conspiracy to commit, or attempt to commit,
 D          or the abetment of, any o.ffence spec(fied in sub-clause (i) or
            sub-clause (ii},
            except on the complaint in writing of that court, or of some
            other court to which that court is subordinate. "
                                                         (Emphasis added)
 E
            8. Contention raised on behalf of the appellant-CBI is that the
      object and purpose of the bar created under the law against taking
      cognizance in respect of the specified offences is to control frivolous or
      vexatious proceedings by private parties. In State of U.P. versus Mata
      Bhikh 1 it was observed :
 F
             "6. The object of this section is to protect persons from being
            vexatiously prosecuted upon inadequate materials or
            insufficient grounds by person actuated by malice or ill-will
            or frivolity of disposition at the instance of private individuals
            for the offences specified therein. The provisions of this
 G          section, no doubt, are mandatory and the Court has no
            jurisdiction to take cognizance of any of the o.ffences
            mentioned.Jherein unless there is a complaint in writing of


      '(1994).4 sec 95
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   CENTRAL BUREAU OF INVESTIGATION v. M. SIVAMANI                              515
              [ADARSH KUMAR GOEL, J.]

      'the public servant concerned' as required by the section A
      without which the trial under Section I 88 of the Indian Penal
      Code becomes void ab initio. See Dau/at Ram v. State of
      Punjab [AIR I962 SCI206}. ......... "
       9. It is submitted that the scheme of the provision shows that the
specified offences in respect of whom the bar is created have direct B
impact on administration of public justice. As against a private party, it is
only the public servant or his superior to whom he is administratively
subordinate is permitted to file a complaint. Reliance has been placed
on the judgment of this Court in Iqbal Singh Marwah versus Meenakshi
Marwah 2 laying down that interpretation of the provision which leads to
a situation where victim of crime is rendered remediless has to be C
discarded and interpretation should advance the object3 • The Constitution
Bench of this Court interpreted the barunder Section 195(l)(b)(ii) to be
limited to a document where forgery was committed after it was
produced or given in evidence before the court. It was held that if
forgery was committed before the document was produced before the D
court, the bar under the said provision was not applicable. In Per11mal
versus Janakai4 it was held that bar under the provision will not apply
if a High Court, as a superior court, directs a complaint to be filed in
respect of offence covered by Section !95(l)(b)(i). It was, thus,
submitted that in the present case protection under Section l 95(l)(a)(i)
cannot apply as it was not at the instance of any private party but at the E
instance of the High Court that CBI investigation was directed to be
conducted. "Other public servant to whom he is administratively
subordinate" should not exclude the High Court.
       10. Learned counsel for the respondent however supported the
view taken by the High Court. It was submitted that there was no               F
reason to ignore the statutory bar against taking cognizance of an offence
under Section 182 except on the complaint in writing of the public servant
concerned or who is administrative superior to whom which expression
could not include the High Court. It was submitted that though on failure
to perform a public duty, the public servant or his superior may be directed   G
by the High Court by a mandamus to file a complaint, direction of the
High Court to conduct investigation was not enough to exclude the
 '(2005) 4 sec 310
 'Para 23 & 25.
 '(2014) 5 sec 377
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516            SUPREME COURT REPORTS                           [2017] 7 S.C.R.



A. statutory bar against taking of cognizance. Reliance has been placed on
   M.S. Ahlawat versus State of Haryana5 laying down as follows:
             "5. Chapter XI IPC deals with 'false evidence and offences
            against public justice" and Section 19 3 occurring therein
            provides for punishment for giving or .fabricating false
B           evidence in a judicial proceeding. Section 195 of the Criminal
            Procedure Code (CrPC) provides that where an act amounts
            to an offence of contempt of the lawful authority of public
            servants or to an offence against public justice such as giving
            false evidence under Section 193 /PC etc. or to an offence
            relating to documents actually used in a court, private
 c          prosecutions are barred absolutely and only the court in
            relation to which the offence was committed may initiate
            proceedings. Provisions of Section 195 CrPC are mandatory
             and no court has jurisdiction to take cognizance of any of
             the offences mentioned therein unless there is a complaint in
 D           writing as required under that section. It is settled law that
            every incorrect or false statement does not make it incumbent
             upon the court to order prosecution, but (sic) to exercise
            judicial discretion to order prosecution only in the larger
             interest of the administration of justice. "
 E           11. We have considered the rival submissions. We find merit in
      the contention raised on behalf of the appellant. While the bar against
      cognizance of a specified offence is mandatory, the same has to be
      understood in the context of the purpose for which such a bar is created.
      The bar is not intended to take away remedy against a crime but only to
      protect an innocent person against false or frivolous proceedings by a
 F    private person. The expression "the public servant or his administrative
      superior" cannot exclude the High Court. It is clearly implicit in the
      direction of the High Court quoted above that it was necessary in the
      interest ofjustice to take cognizance of the offence in question. Direction
      of the High Court is at par with the direction of an administrative superior
 G    public servant to file a complaint in writing in terms of the statutory
      requirement. The protection intended by the Section against a private
      person filing a frivolous complaint is taken care of when the High Court
      finds that the matter was required to be gone into in public interest.

      '(2000) 1 sec 278
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  CENTRAL BUREAU OF INVESTIGATION v. M. SIVAMANI                              517
             [ADARSH KUMAR GOEL, J.]

Such direction cannot be rendered futile by invoking Section 195 to such      A
a situation. Once the High Court directs investigation into a specified
offence mentioned in Section 195, bar under Section 195(l)(a) cannot
be pressed into service. The view taken by the High Court will frustrate
the object oflaw and cannot be sustained.
       12. Accordingly, we allow these appeals and set aside the impugned     B
order. Since the matters have been hanging in fire for the last more than
15 years, it will be in the interest of justice that the proceedings are
concluded as far as possible within six months.

Devika Gujral                                              Appeols allowed.