KISHOREBHAI GANDUBHAI PETHANIversusSTATE OF GUJARAT & ANR.

                     [2013) 10 S.C.R. 208


A            KISHOREBHAI GANDUBHAI PETHANI
                               v.
                 STATE OF GUJARAT & ANR.
              (Criminal Appeal No. 1451 of 2013)
                    SEPTEMBER 20, 2013
B
         [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.)

       Code of Criminal Procedure, 1973 - ss. 1951340 -
  Applicability of - Held: If documents have been forged and
C fabricated prior to filing of those documents in the Court,
  provisions of ss. 1951340 are not attracted.

      On the basis of evidence of a witness in a criminal
  case against the appellant that some manipulation had
  been done by the appellant in medical report, the
0
  complainant lodged a complaint u/ss. 463, 465, 468, 471
  and 114 IPC in respect of the tampering with the medical
  report. Appellant's application u/s.482 Cr.P.C. for
  quashing the complaint, was dismissed by High Court,
E rejecting the contention of the appellant that such a
  complaint was not maintainable unless it was made by
  the Court itself under the provisions of s.195 Cr.P .C.
  Hence the present appeal.

       Dismissing the appeal, the Court
F
       HELD: 1. Perjury is an obstruction of justice.
  Deliberately making false statements which are material
  to the case, and that too under oath, amounts to crime
  of perjury. Thus, perjury has always to be seen as a
G cause of concern for the judicial system. It strikes at the
  root of the system itself and disturbs the accuracy of the
  findings recorded by the court. Therefore, any person
  found guilty of causing perjury, has to be dealt with


H                             208
 KISHOREBHAI GANDUBHAI PETHANI v. STATE OF 209
                 GUJARAT

seriously as it is necessary for the working of the court     A
as well as for the benefit of the public at large. [Para 7)
[213-C-D]
    Mohan Singh vs. Late Amar Singh (through LR's) AIR
1999 SC 482: 1998 (1) Suppl. SCR 252 -- relied on.
                                                              B
    2. In the instant case, the documents had been
forged and fabricated. The manipulation, if any, had been
made prior to filing of those documents in the court.
Therefore, in such a fact-situation, provisions of Sections
195 and 340 Cr.P.C. are not attracted. Therefore, no fault    c
can be found with the impugned judgment rendered by
the High Court. The facts and circumstances of the case
do not warrant any interference. [Paras 8 and 14] [213-D-
E; 217-C]
     Iqbal Singh Marwah and Anr. vs. Meenakshi Marwah and     D
Anr. AIR2005 SC 2119: 2005 (2) SCR 708 - followed.
     Ram Ohan vs. State of U.P. and Anr. AIR 2012 SC 2513:
2012 (3) SCR 1059; Sachida Nand Singh and Anr. vs. State
of Bihar and Anr. (1998) 2 SCC 493: 1998 (1) SCR 492; P.
Swaroopa Rani vs. M. Hari Narayana @ Hari Babu AIR 2008       E
SC 1884: 2008 (3) SCR 900; Mahesh Chand Sharma vs.
State of U. P. and Ors. AIR 2010 SC 812: 2009 (13) SCR
922; C. Muniappan and Ors. vs. State of Tamil Nadu. AIR
2010 SC 3718: 2010 (10) SCR 262; Institute of Chartered
Accountants of India vs. Vimal Kumar Surana and Anr. (2011)   F
1 SCC 534: 2010 (14) SCR 248; C.P. Subhash vs. Inspector
of Police Chennai and Ors. JT (2013) 2 SC 270: 2013 SCR
545; Rugmini Ammal (Dead by L.Rs.) vs. V. Narayana
Reddiar and Ors. AIR 2!108 SC 895: 2007 (13) SCR 587 -
relied on.                                                    G
    M. S. Ahlawat vs. State of Haryana and Anr. AIR 2000 SC
168: 1999 (4) Suppl. SCR 160 - referred to.
                    Case Law Reference:
    1999 (4) Suppl. SCR 160     referred to      Para 3       H
    210      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A         1998 (1) Suppl. SCR 252      relied on         Para 6
          2005 (2) SCR 708             followed          Para 10
          2012 (3) SCR 1059            relied on         Para 11
          1998 (1) SCR 492             relied on         Para 11
B
          2008 (3) SCR 900             relied on         Para 12
          2009 (13) SCR 922            relied on         Para 12
          2010 (10) SCR 262            relied on         Para 12
c
          2010 (14) SCR 248            relied on         Para 12
          2013 SCR 545                 relied on         Para 12
          2007 (13) SCR 587            relied on         Para 12
D       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1451 of 2013.

      From the Judgment and Order dated 12.09.2011 of the
  High Court of Gujarat at Ahmedabad in CRMA No. 3213 of
E 2011.

         Sushil Kumar Jain, Puneet Jain, Chhaya Kirti, Chisti Jain,
    Pratibha Jail') for the Appellant.

        Nirav C. Thakkar, Mohit D. Ram, Hemantika Wahi for the
F   Respondents.

          The Judgment of the Court was delivered by

       DR. B.S. CHAUHAN, J. 1. This criminal appeal has been
G preferred against the judgment and order dated 12.9.2011,
  passed by the High Court of Gujarat in Criminal Misc.
  Application No.3213 of 2011 dismissing the appellant's
  application for quashing the complaint lodged by the respondent
  No.2 being ICR No.180 of 2010 dated 5.7.2010 under Sections
  463, 465, 468, 471 and 114 of the Indian Penal Code 1860
H (hereinafter referred to as 'IPC').
   •




 KISHOREBHAI GANDUBHAI PETHANI v. STATE OF                  211
       GUJARAT [DR. B.S. CHAUHAN, J.]
       2. Facts and circumstances giving rise to this appeal are   A
fu~                                                      .

     A. A complaint bearing ICR No.271 of 2003 was lodged
by respondent no.2 before Madhavpura Police Station for the
offences punishable under Sections 323, 324, .294A. 506(2)
and 114 IPC read with Section 135(1) of the Bombay Police          8
Act, 1951, naming the appellant and one other individual.
Subsequently, considering the nature of injuries, Section 307
IPC was also added and the chargesheet was submitted after
having investigated with respect to the said offences wherein
the appellant as well as his wife had been arrayed as accused.     C
After committal of the case to the learned Sessions Court, the
Sessions Case No.175 of 2007 is being tried.

      B. During the hearing of the Sessions Case No.175 of
2007, the prosecution examined one Dr. Ghanshyam Chunilal          o
Patel (PW.3) on 12.5.2010, wherein he deposed that he had
treated the complainant and also produced a copy of the injury
certificate, Exh.105. It was alleged that some portion of the
documents produced by the said witness had been tampered
with and as the appellant herein had been a beneficiary of the     E
same, it was suggested that some manipulation had been
done by the appellant. Thus, the complainant filed an
application to enquire into the matter of tampering with the
medical report.

     C. An application for cancellation of bail was also filed     F
alleging that the appellant had tampered with the documents
produced before the Sessions Court for obtaining the bail.

     D. Subsequent thereto, a complaint was lodged on
5.7.2010 being FIR No.180 of 2010 under Sections 463, 465,         G
468, 471 and 114 IPC in respect of tampering with the
aforesaid medical report.

     E. The appellant filed Criminal Misc. Application No.3213
of 2011 under Section 482 of Criminal Procedure Code 1973
                                                                   H
    212      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   (hereinafter referred to as 'Cr.P.C.') to quash the complaint
    lodged before Shahibaug Police Station being ICR No.180 of
    2010. The High Court dismissed the said application rejecting
    the contention of the appellant that such a complaint was not
    maintainable unless it is made by the court itself under the
8   provisions of Section 195 Cr.P.C.

          Hence, this appeal.

       3. Shri Sushi! Kumar Jain, learned senior counsel for the
  appellant submitted that it is a settled legal proposition that in
C view of the provisions of Sections 195/340 Cr.P.C. where the
  forgery is alleged to have been made in the court, the complaint
  is not maintainable unless it is made by the court itself. In
  support of this proposition, he has placed a very heavy reliance
  upon the judgment of this Court in M.S. Ahlawat v. State of
o Haryana & Anr., AIR 2000 SC 168. It has been submitted that
  the appeal deserves to be allowed and the complaint is liable
  to be quashed.

          4. On the contrary, Shri Nirav C. Thakkar, learned counsel
    appearing for respondent no.2 and Ms. Hemantika Wahi,
E   learned counsel for the State, have submitted that in case the
    documents have been forged outside the court before being
    filed and relied upon in the court proceedings, the provisions
    of Section 195 Cr.P.C. are not attracted. To buttress their case,
    they have placed reliance on the judgment of this Court in Iqbal
F   Singh Marwah & Anr. v. Meenakshi MariNah & Anr., AIR 2005
    SC 2119. It has been suggested by them that the appeal lacks
    merit and is liable to be dismissed.

       5. We have considered the rival submissions made by
G learned counsel for the parties and perused the record.

         6. In Mohan Singh v. Late Amar Singh (through LR's), AIR
    1999 SC 482, while dealing with a case of perjury, this Court
    held as under:

H         " ..... Tampering with the record of judicial proceedings and
 KISHOREBHAI GANDUBHAI PETHANI v. STATE OF 213
       GUJARAT [DR. S.S. CHAUHAN, J.]
    filing of false affidavit, in a Court of law has the tendency     A
    of causing obstruction in the due course of justice. It
    undermines and obstructs free flow of unsoiled stream of
    justice and aims at striking a blow at the rule of law. The
     stream of justice has to be kept clear and pure and no
     one can be permitted to take liberties with it by soiling        B
    its purity ..... "

      7. Perjury is an obstruction of justice. Deliberately makirig
false statements which are material to the case, and that too
under oath, amounts to crime of perjury. Thus, perjury has            C
always to be seen as a cause of concern for the judicial system.
It strikes at the root of the system itself and disturbs the
accuracy of the findings recorded by the court. Therefore, any
person found guilty of causing perjury, has to be dealt with
seriously as it is necessary for the working of the court as well
as for the benefit of the public at large.                            D

     8. In the instant case, admittedly, the documents had been
forged and fabricated. The manipulation, if any, had been made
prior to filing of those documents in the court. Therefore, the
question arises whether in such a fact-situation, provisions of       E.
Sections 195 and 340 Cr.P.C. are attracted.

     9. In M.S. Ahlawat (supra), this Court held as under:

     "5. Chapter XI /PC deals with "false evidence and
     offences against public justice" and Section 193 occurring       F
     therein provides for punishment for giving or fabricating
     false 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     G
    justice such as giving false evidence under Section 193
     /PC etc. or to an offence relating to documents actually
    used in a court, private prosecutions are barred
     absolutely and only the court in relation to which the
     offence was committed may initiate proceedings.                  H
    214       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         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 writing as required under that section. It is settled law
          that every incoffect or false statement does not make it
B         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.

          6. Section 340 CrPC pre.scribes the procedure as to how
          a complaint may be prefeffed under Section 195 CrPC.
c          While under Section 195 CrPC it is open to the court
          before which the offence was committed to prefer a
          complaint for the prosecution of the offender, Section 340
           CrPC prescribes the procedure as to how that complaint
          may be preferred. Provisions under Section 195 CrPC
D         are mandatory and no court can take cognizance of
          offences referred to therein (sic). It is in respect of such
          offences the court has jurisdiction to proceed under
           Section 340 CrPC and a complaint outside the
          provisions of Section 340 CrPC cannot be filed by any
E          civil, revenue or criminal court under its inherent
          jurisdiction. n

      10. However, a Constitution Bench of this Court in Iqbal
  Singh Marwah (supra) after considering a large number of
F judgments on the issue held as under:

          "23. That apart, the section which we are required to
          interpret is not a penal provision but is part of a
          procedural law, namely, the Code of Criminal Procedure
          which elaborately gives the procedure for trial of criminal
G         cases. The provision only creates a bar against taking
          cognizance of an offence in certain specified situations
          except upon complaint by court. A penal statute is one
          upon which an action for penalties can be brought by a
          public officer or by a person aggrieved and a penal Act
H         in its wider sense includes every statute creating an
 KISHOREBHAI GANDUBHAI PETHANI v. STATE OF                  215
       GUJARAT [DR. B.S. CHAUHAN, J.]
                                        I

    offence against the State, whatever is the character of the     A
    penalty for the offence. The principle that a penal statute
    should be strictly construed, as projected by the teamed
    counsel for the appellants can, therefore, have no
    application here.
                                                                    B
          xx    xx                xx               xx
    25. In view of the discussion made above, we are of the
    opinion that Sachida Nand Singh has been correctly
    decided and the view taken therein is the correct view.
    Section 195(1)(b)(ii) CrPC would be attracted only when C
    the offences enumerated in the said provision have been
    committed with respect to a document after it has
    been produced or given in evidence in a proceeding
    in any court i.e. during the time when the document
    was In custodia legis.                                  D

    26. In the present case, the Will has been produced in
    the court subsequently. It is nobody's case that any
    offence as enumerated in Section 195(1 )(b)(ii) was
    committed in respect to the said Will after it had been         E
    produced or filed in the Court of District Judge.
    Therefore, the bar created by Section 195(1)(b)(ii) CrPC
    would not come into play and there is no embargo on
    the power of the court to take cognizance of the
    offence on the basis of the complaint filed by the              F
    respondents ..... "

                                             (Emphasis added)

      11. This Court in Ram Ohan v. State of U.P. & Anr., AIR
2012 SC 2513 considered this very aspect of the matter and          G
relying upon the earlier judgment of this Court in Sachida Nand
Singh & Anr. v. State of Bihar & Anr., (1998) 2 sec 493 came
to the conclusion that if the fabrication of false evidence takes
place or the document is tampered with before filing in court,
the provisions of Section 195 Cr.P.C. would not be attracted.       H
    216      SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A   It is only when the document is tampered with after filing in court
    then the bar provided in Section 195 Cr.P.C. would be
    attracted.

       12. A similar view has been reiterated on the issue by this
B Court in P. Swaroopa Rani v. M. Hari Narayana@ Hari Babu,
  AIR 2008 SC 1884; Mahesh Chand Sharma v. State of U. P.
  & Ors., AIR 2010 SC 812; C. Muniappan & Ors. v. State of T.
  N., AIR 2010 SC 3718; Institute of Chartered Accountants of
  India v. Vimal Kumar Surana & Anr., (2011) 1 SCC 534; and
C C.P. Subhash v. Inspector of Police Chennai & Ors., JT (2013)
  2 SC 270.

      13. This Court while considering the issue in Rugmini
  Ammal (Dead by L.Rs.) v. V. Narayana Reddiar & Ors., AIR
  2008 SC 895 reiterated a similar view while placing reliance
D upon Sachida Nand Singh (Supra) explaining as under:

          "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
E
          of great misuse. As pointed out in Sachida Nand Singh
          2 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
F         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
G         which the actual trial of such a person may be delayed
          indefinitely. Such an interpretation would be highly
          detrimental to the interest of the society at large.

          26. Judicial notice can be taken of the fact that the courts
H         are normally reluctant to direct filing of a criminal
 KISHOREBHAI GANDUBHAI PETHANI v. STATE OF                 217
       GUJARAT [DR. B.S. CHAUHAN, J.]
         "
     complaint and such a course is rarely adopted. It will not   A
     be fair and proper to give an interpretation which leads
     to a situation where a person alleged to have committed
     an offence of the type enumerated in clause (b)(ii) is
     either not placed for trial on account of non-filing of a
     complaint or if a complaint is filed, the same does not      B
     come to its logical end. Judging from such an angle will
     be in consonance with the· principle that an unworkable
     or impracticable result should be avoided ..... "

     14. In view of the above, we do not hesitate to hold that    C
 no fault can be found with the impugned judgment rendered by
 the High Court. The facts and circumstances of the case do not
 warrant any interference. The appeal lacks merit and is
·accordingly dismissed.

K.K.T.                                     Appeal dismissed.      D