Supreme Court: No bar on Prosecution u/s195(1)(b)(i) CrPC By Investigating Agency For Offence Committed During Investigation Stage U/s193 IPC

Supreme Court: No bar on Prosecution u/s195(1)(b)(i) CrPC By Investigating Agency For Offence Committed During Investigation Stage U/s193 IPC

The Supreme Court (SC) held on 12 March 2021, in the case titled Bhima Razu Prasad (Appellant) v. State (Respondent) that the prosecution by the investigating agency for an offense punishable u/s 193 of Indian Penal Code (IPC) i.e. for fabricating false evidence committed during the stage of the investigation will not be barred u/s 195(1)(b)(i) of Criminal Procedure Code (CrPC) if the investigating agency has lodged a complaint or registered the case prior to commencement of proceedings and production of such evidence before the Trial Court.

The SC bench comprising of Justices Mohan M. Shantanagoudar and Vineet Saran noted that in such a situation the said offenses would not be considered as an offense committed regarding any proceeding of the Court for the purpose of Section 195(1)(b)(i), CrPC.

The factual background of the case is that investigation proceeded against the first accused in the corruption and disproportionate assets case. When the investigation was going on, the second and third accused wrote a letter to the Superintendent of Police (SP)/ CBI wherein they claimed that the seized currency did not belong to the first accused.

It was further mentioned in the said letter that Accused No. 2 had entered into an agreement of sale to purchase properties from Accused No. 3, for which a sum of Rs. 80 lakh was to be paid in advance. They alleged that Accused No. 2 was not available on the said date of execution of the written agreement and hence he had entrusted the seized currency, along with a duplicate copy of the agreement signed by him, to the first accused.

In the investigation, it was revealed that the accused fabricated a false deed of agreement for sale to be shielded from legal action in the disproportionate assets case.

The charges were framed by the CBI against all the accused persons u/s 120B read with Section 193 of the IPC, in addition to charges framed under the Prevention of Corruption Act, 1988 (PC Act).

The accused stated before the Trial Court that complaint u/s 195(1)(b) CrPC was necessary for prosecuting the case u/s 193, IPC. The Trial Court rejected the said contention and convicted the accused u/s 13(2) read with Section 13(1)(e) of the PC Act and u/s 120B and 193 of the IPC.

An appeal was filed before the High Court (HC) that upheld the order of the Trial Court and observed that Sections 195(1)(b)(i) and 340, CrPC would not be applicable in the instant matter as the documents were fabricated during the investigative phase prior to their production during before the Trial Court.

Issue before the SC

Whether Section 195(1)(b)(i), CrPC bars lodging of the case by the investigating agency u/s 193 IPC, regarding the offense of giving false evidence committed at the stage of the investigation that was prior to the stage of production of evidence before the Trial Court?

The appellant contended before the SC that there exists an absolute bar against taking of cognizance for the offenses specified u/s 195(1)(b)(i) CrPC by any means except upon a written complaint by the concerned Court even if the offense of giving false evidence u/s 193 IPC was allegedly committed prior to proceedings before a Court of law.

He further urged that as per Section 195(1)(b)(i) CrPC cannot be construed as analogous to Section 195(1)(b)(ii).

The Top Court after hearing the parties at length said that "In case the bar under Section 195(1)(b)(i) is applied to offenses committed during the investigation, the Court may think it fit to wait till the completion of a trial to evaluate whether a complaint should be made or not. Subsequently, the Court may be of the opinion that in the larger scheme of things the alleged fabrication of evidence during the investigation has not had any material impact on the trial, and decline to initiate prosecution for the same."

The SC bench further stated that "The investigation agency cannot be compelled to take a chance and wait for the Trial Court to form its opinion in every case. This may give the offender under Section 193, IPC sufficient time to fabricate more falsehoods to hide the original crime."

It added, "Further, irrespective of the potential impact that such false evidence may have on the opinion formed by the Trial Court, the investigating agency has a separate right to proceed against the accused for attempting to obstruct the fair and transparent probe into a criminal offense. Thus, we are of the view that it would be impracticable to insist upon lodging of the written complaint by the Court under Section 195(1)(b)(i), CrPC in such a situation."

The Top Court further said that "It must be clarified that the aforementioned opinion expressed by us is limited to factual situations such as the present case wherein the fabricated, evidence has been detected prior to commencement of the trial, or without such trial having been initiated in the first place."

The Top Court further stated in its judgment that the Courts during trial proceedings may take judicial notice of such defect in the investigation process and make a complaint u/s 195(1)(b)(i) may not give rise to many difficulties.

However, in the instant matter, the SC declined to make any conclusive finding on this issue stating that the facts of the present appeal do not need such consideration from the Court. Hence, the settlement of this issue is left open to future Benches of the SC.

While dismissing the appeal the SC bench answered the question of law and held that "Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offense punishable under Section 193, IPC, which is committed during the stage of the investigation."

It concluded, "This is provided that the investigating agency has lodged a complaint or registered the case under Section 193 IPC prior to commencement of proceedings and production of such evidence before the Trial Court. In such circumstance, the same would not be considered an offense committed to, or concerning, any proceeding in any Court for the purpose of Section 195(1)(b)(i), CrPC."