1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2636 OF 2009 Mr. Yogesh M. Parab & Ors. ... Petitioners. V/s. Mukund M. Goradia & Anr. ... Respondents. Mr. Niteen Pradhan i/b. Ms. S.D. Khot & Ameeta Kuttikrishnan for the Petitioners. Mr. Shrimadhukar Dalvi with S.K. Legal Assoc. for Respondent 1. Mr. S.R. Shinde, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 25th JANUARY 2010. P.C. :- On the last date, arguments have been concluded. The matter was posted for orders. 2. Heard Mr. Pradhan, learned Advocate appearing on behalf of the Petitioners who are Original Accused Nos. 1 to 3,5,7 to 40, 42 to 46, 48 and 50 to 54. I have also heard the learned Advocate appearing for the Respondents including the First Respondent – Complainant. 3. By this Petition, the Petitioners are challenging the concurrent orders of the Court below issuing process in C.C.No.26/SW/2009. The order issuing process is dated 24th February 2009 and it is passed by the Special Metropolitan Magistrate, 48th Court, Andheri, Mumbai. That order was 2 challenged by the Petitioners by filing Revision Application No. 557 of 2009. By an order dated 9th September 2009, the Revision Application has been dismissed. 4. The only contention raised by Mr. Pradhan, learned Advocate appearing on behalf of the Petitioners is that the order issuing process is ex-facie illegal and erroneous inasmuch as the learned Judge has failed to appreciate the provisions and more particularly, Section 211 of the I.P.C. Mr. Pradhan submits that in this case process could not have been issued against the Petitioners, some of whom are Senior Citizens. He submits that the proceedings are untenable from reading of Section 211 of I.P.C., it is clear that the offence must relate to either the Court proceeding or if it is to fall in the first part of the Section, then, it must be prima-facie proved that a false charge has been made against the First Respondent – Complainant. He submits that in this case the essential ingredients are not made out by the complaint itself. On a proper and complete perusal of the complaint, no offence under Section 211 of the I.P.C. has been made out. Mr. Pradhan has contended that the Court below has failed to appreciate that in the present case the words which are appearing in the provision in question, namely Section 211 of I.P.C. themselves make it clear that something more is required to be established and proved even at this prima-facie stage. Mr. Pradhan has pointed out that the complaint in this case does not make out any case of an offence punishable under Section 211 of I.P.C. He has contended that the Courts 3 below have failed to appreciate that the First Respondent – Complainant is a builder and developer. He wants to develop the property. Therefore, he is anxious to oust the Petitioners from the site. He has filed the instant complaint only as a counter-blast and knowing fully well that until and unless he obtains the possession of property in accordance with law, he cannot oust the Petitioners. In the instant case he has approached the Court by alleging that the Petitioners have made a false charge to the Police. However, the Petitioners have approached the Police under an apprehension that there is a likelihood that they would be forcibly dispossessed from the events when such as apprehension is made out then, merely because some of the persons at site have stated that the complaint was made to the Police on apprehension by itself is no ground to presume that the proceedings initiated by the Petitioners are containing false charges. He submits that the Courts below have failed to appreciate the facts in their entirety. If there is some background to the understanding, then, it cannot be said that the complaint is maintainable and therefore, a process be issued. 5. Mr. Pradhan has further submitted that there are written submissions tendered in this case pointing out as to how the complaint in question is untenable. He submits that the written submissions would go to show that arguable points are made out and therefore, the order issuing process is bad in law and must be quashed and set aside. 4 6. On the other hand, the First Respondent contended that the present complaint in this case is made by him, after the initial complaint made by the Petitioners to the Police was found to be based on false charges. They, with an intention to involve the First Respondent in a false case, addressed a letter dated 7th October 2007 to the Deputy Commissioner of Police, Bandra, Mumbai. The original letter is in Marathi and contains several false accusations and charges. 7. On this complaint, the statement of the First Respondent came to be recorded by the Police, after making necessary enquiry. However, when the accused persons were also called, they stated that the complaint has been made by them on the basis that the First Respondent may harass them in future. Some of them stated that to allegedly pressurize them, a case is filed in the Court of Small Causes at Bandra and they signed the complaint on the basis of some enquiry made under the Right to Information Act. 8. The learned Advocate submits that in the complaint it has been pointed out as to how all the charges are false. It is not as if the complaint is straight away not maintainable. He submits that on a proper reading of the legal provisions in question, it is apparent that nowhere it has been stated that the offence under Sections 211 of I.P.C. is not made out. The Revision Application is argued only on the basis that offence under Section 211 of I.P.C. relates to a Court proceeding and institution of false Criminal Proceedings before the Police or 5 falsely charging any person with having committed a criminal offence before the Police does not attract Section 211 of I.P.C. He submits that now a totally different case is sought to be made out in the present Petition. The words criminal proceedings have been interpreted in several decisions. He submits that if the Section is properly construed and with the purpose and object that the legislature had in mind, then, in the instant case, order issuing process does not require any interference. The Petition, therefore, deserves to be dismissed. 9. For properly appreciating these contentions, a reference is necessary to Section 211 of I.P.C. Section 211 of I.P.C. reads as under :- “ False charge of offence made with intent to injure. -- Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceedings be instituted on a false charge of an offence punishable with 6 death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 10. A bare perusal of this Section makes it clear that whoever with intent to cause injury to any person, institutes or causes to be instituted any Criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding, or charge against that person, shall be punished in accordance with the said provision. 11. It is argued that for initiating such a complaint, it is necessary that the “Criminal Proceedings” means the proceedings in a Court. It is not the intent of the legislature that the complaint to a Police is covered by the said legal provision. It is urged that the complaint to a Police is a part covered by Section 182 of the I.P.C. There are too distinct provisions and therefore, one cannot overlap the other or should not be confused with the other. 12. It is not as if this argument has not been considered in the decided cases. As far as this Court is concerned, the provision in question fell for consideration of this Court on numerous occasions. In a decision reported in 1971 Mah.L.J. 704 (State of Maharashtra V/s. Ramlakhan Upadhaya), this 7 Court has made the following distinction when such a complaint is to be scrutinized. 13. The learned Single Judge (Mr. M.N. Chandurkar, J. as his Lordship then was) while discussing the ambit and scope of this provision held thus :- “3. Ramlakhan then filed a revision application before the Additional Sessions Judge. The Additional Sessions Judge relying on a decision of this Court in Bajaji Appaji V/s. Emperor held that in view of the provisions of Section 195(1)(b) of the Criminal Procedure Code, hereinafter referred to as the Code in the absence of any complaint by the Magistrate, who issued ‘B’ summary, the Judicial Magistrate could not have taken cognizance of the offence under Section 211 of the Indian Penal Code. He, therefore, took the view that the proceedings before the Magistrate were without jurisdiction and should be quashed. He has accordingly made this reference. 5. I have heard Shri Deshpande and the learned Additional Government Pleader at great length and I am inclined to take the view that the reference cannot be accepted on the facts of the instant case. At the outset it has to be pointed out that the decision in Bajaji’s case was inapplicable to the facts 8 of the instant case. In that case the question was whether, where information of an offence given to the police is followed by a complaint to a Magistrate’s Court based on the same allegations, a complaint of the Court itself was necessary under Section 195(1)(b) of the Code for taking cognizance of an offence punishable under Section 211 of the Penal Code in respect of the false charge made to the police. The facts in that case were that on 13th October 1942 Bajaji gave information to the police patil of Shirdi that one Amlok Khushal was in possession of wheat stolen from his house. On investigation this complaint was found to be false and so, on a report made under Section 173 of the Code, the sub Divisional Magistrate granted a ‘B’ summary and the police then sent a charge-sheet against the petitioner under Section 211 of the Penal Code, but before the police had sent a chargesheet under Section 211 of the Penal Code Bajaji had filed a regular complaint on the same facts before the Resident Magistrate, Belapur Road, and that complaint eventually ended in the discharge of the accused. The case against Bajaji under Section 211 of the Penal Code which had been sent up by the police, but had been kept pending till then was taken up for trial and Bajaji then contended that the trial could not go on without a complaint from the Resident Magistrate, Belapur Road, under Section 9 195(1)(b) of the Code. This contention was rejected and the trial was proceeded with. The learned Sessions Judge, Ahmednagar, having declined to interfere in the matter Bajaji approached the High Court by filing a revision application. 6. Referring to these facts, it was observed that it was not disputed before the High Court that Bajaji’s complaint before the police patil of Shirdi and that before the Resident Magistrate of Belapur Road related to the same incident and the identical offence and the High Court further observed : “We are, therefore, clearly of opinion that where an alleged false complaint is first made to the police and then to a Court, a complaint under Section 211 Penal Code, subsequently filed is a complaint of an offence alleged to have been committed in, or in relation to a proceeding in Court and cannot be taken cognizance of except on the complaint of the Court.” The decision in Bajaji’s case on the basis of which the reference is made by the learned Additional Sessions Judge shows that it clearly related to a case, where, after a report was made to the police, a regular complaint on the same facts was made to the Magistrate and it was, therefore, held that in respect of such a false complaint cognizance of an offence 10 under Section 211 of the Penal Code cannot be taken except on a complaint by a Magistrate in view of the provisions of Section 195(1)(b) of the Code. 7. Such, however, are not the facts in the instant case. It is, however, vehemently contended by the learned Counsel appearing on behalf of the accused that the order passed by the Magistrate, who granted ‘B’ summary is a judicial order and the prosecution instituted against the accused for the offence under Section 211 of the Indian Penal Code relates to a false charge made in a proceeding which has ended before the Magistrate, and therefore, cognizance of the offence could not be taken by the Magistrate except on a written complaint made by the Magistrate himself. Strong reliance is placed on the decision of the Supreme Court in M.L. Sethi V/s. R.P. Kapur. The Supreme Court in this case, after referring to the provisions of Section 195(1)(b) of the Code, observed that Section 195(1)(b) was a limitation to an offence punishable under Section 211 of the Indian Penal Code and that it is at the stage when a Magistrate is taking cognizance under Section 190 that he must examine the facts of the complaint before him and determine whether his power of taking cognizance under Section 190 has or has not been taken away by clause (b) of sub-section (1) of Section 195 of the Code. Referring to the three 11 situations possible with reference to the proceedings as contemplated by Section 195(1)(b), the Supreme Court in para 13 of the judgment observed : “When examining the question whether there is any proceeding in any Court, there are three situations that can be envisaged. One is that there may be no proceeding in any Court at all. The second is that a proceeding in a Court may actually be pending at the Penal Code. The third is that, thought there may be no proceeding pending in any Court in which or in relation to which the offence under Section 211, Indian Penal Code, could have been committed, there may have been a proceeding which had already concluded and the offence under Section 211 may be alleged to have been committed in, or in relation to, that proceeding. It seems to us that in both the later two circumstances envisaged above, the bar to taking cognizance under Section 195(1)(b) would come into operation. If there be a proceeding actually pending in any Court and the offence under Section 211, Indian Penal Code is alleged to have been committed in relation to that provision would apply if it is alleged that the offence under Section 211, Indian Penal Code, was committed in or in relation to, that proceeding. The fact that the proceeding had concluded would be immaterial because Section 195(1)(b) does not 12 require that the proceeding in any Court must actually be pending at the time when the question of applying this bar arises.” Reliance is then placed on certain observations made by the Court in the same case in paragraph 31 of the judgment in which a reference was made to a decision of this Court in State V/s. Murlidhar Goverdhan in which it has been held that when a Magistrate passes an order on the proceedings under Section 173, Criminal Procedure Code, that order is a judicial order made by him. The Supreme Court has observed with reference to the facts before it : “ For purposes of considering the effect of these cases in the case before us, it is not at all necessary to express any opinion on the correctness of the view that the order passed under Section 173, Criminal Procedure Code, by the Magistrate is a judicial order when Section 190(1)(b), Criminal Procedure Code. Even it be accepted that the final orders at the last stage, on receipt of the report under Section 173, the Magistrate has to act in his judicial capacity. Until that stage is reached, there is no intervention by the Magistrate in his judicial capacity or as a Court. Consequently, until some occasion arises for a Magistrate to make a judicial order in connection with an investigation of a cognizable offence by the police 13 no question can arise of the Magistrate having the power of filing a complaint under Section 195(1)(b) Criminal Procedure Code.” On the basis of these observations quoted above it is vehemently argued for the accused that the instant case is covered by the last category of cases referred to by the Supreme Court earlier, namely, that a proceeding was at one time pending before the Magistrate and has been disposed of though it was not actually pending at the time when prosecution under Section 211 of the Indian Penal Code was launched and since the order passed on the report made to the Magistrate under Section 173 of the Code was a judicial order, the false complaint made to the police by the accused must be read as one relating to the proceedings which has been disposed of by the Magistrate, and therefore, unless a complaint was made under Section 195(1)(b) of the Code by the Magistrate cognizance of the offence under Section 211 of the Indian Penal Code could not be taken by the Magistrate.” 14. My attention is invited to several decisions of the Supreme Court and of this Court. Essentially, the emphasis in on a decision of the Hon’ble Supreme Court reported in AIR 1969 SCC 355 (State of Punjab V/s. Brijlal). The First Respondent on the other hand relies upon a decision of the 14 Supreme Court reported in (1973) 2 SCC 406 (Santokh Singh V/s. Izhar Hussain and Anr.). In this decision, the Hon’ble Supreme Court has held that the essential ingredient of an offence punishable under Section 211 of I.P.C. is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed offence, knowing that there is no just and lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. To “falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not then seeking to prove the false charge framed in that trial. The words “falsely charges” have to be read alongwith the expression “institution of criminal proceedings”. The false charge must therefore be made initially to get the offender punished by appropriate proceedings. In other words, it must be embodied either in a complaint or in a report of a cognizable offence to the Police Officer or to an officer having authority over the person against whom allegations are made. Paragraph 10 of the said decision sets out the following principles :- “10. Now, in the present case, the Additional District Magistrate had on November 30, 1966, acquitted all the accused of the offences charged. He did not hold that the appellant had falsely charged Izhar Hussain 15 with any offence, nor did he consider it expedient in the interest of justice to prosecute him for an offence under Section 211, I.P.C. As already noticed when in January, 1967, Izhar Hussain applied to that Court under Sections 476/479-A, Cr.P.C. for the prosecution of the appellant and two others, the court felt that in view of the decision in Kuppa Goundani’s case (supra) the proceedings under Section 476, Cr.P.C. were incompetent. Section 479-A has not been relied upon by Shri Kohli and in our opinion rightly because on the admitted facts in this case that Section has not been complied with. In Kuppa Goundan’s case (supra) it was observed that the scheme of Section 479-A Cr.P.C. is to enact a special procedure for more expeditious and defective manner of dealing with certain cases of perjury and fabrication of false evidence of witness in the course of judicial proceedings. But the necessary condition for applying this section is that the court must form an opinion that a particular witness or witnesses is or are giving false evidence and at the time of delivering its judgment record a finding to that effect. This was not done in this case. Now, b y virtue of Section 479-A(6) no proceeding can be taken against Santokh Singh under Sections 476 to 479 for giving false evidence. Shri Kohli’s argument as already noticed, is that the appellant is not being prosecuted for giving false evidence as indeed that is not 16 permissible now, but only for falsely charging Izhar Hussain in his evidence in court. The short question posed, therefore, is, if by giving false evidence as a witness against Izhar Hussain the appellant can be said to have charged him within the contemplation of Section 211, I.P.C. If this question is answered in the affirmative, then it will have to be determined whether there is in fact a false accusation and finally whether it is expedient in the interest of justice on the facts and circumstances of the present case to direct a complaint to be filed under Section 211, I.P.C. This section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence under Section 211, I.P.C. is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the Appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211, I.P.C. is eliminated. Now, the expression “falsely charges” in this Section, in our opinion, 17 cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. To “falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must b e embodied either in a complaint or in a report of a cognizable offence to the police officer or an officer having authority over the person against whom the allegations are made. The statement in order to constitute the “charge” should be made with the intention and object of setting criminal law in motion. Statement on oath