Crl. Appeal No.221-SB of 1996 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No.221-SB of 1996 Date of decision. 01.05.2009 Ballab Lal son of Rameshwar Dayal, r/o 511/14 Basai Road, Gurgaon. ....... Appellant Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gautam Dutt, Advocate for the appellant. Mr. P.S. Sullar, DAG, Haryana for the respondent-State. **** Sham Sunder, J. This appeal is directed against the judgment of conviction dated 22.02.1996, and the order of sentence dated 27.02.1996, rendered by the Court of Additional Sessions Judge, Gurgaon, vide which it convicted and sentenced the accused(now appellant), as under:- Crl. Appeal No.221-SB of 1996 --2-- Name of the accused (now appellant) The offence for which conviction was recorded. Sentence awarded Ballab Lal U/Ss.195/120-B IPC Rigorous Imprisonment for 3 years. Fine of Rs.1000/-.In default of payment of fine to undergo imprisonment for two months. Accused Dinesh Kumar and Kishan Chjand were, however, acquitted of the charge framed against them. 2. The facts, in brief, are that on 14.06.1986, Amar Nath, complainant, made a statement to the Deputy Superintendent of Police, stating therein that Ballab Lal son of Rameshwar Dayal, was an accused, in case FIR No. 8 dated 06.01.1984, Police Station, City Gurgaon. In that case, he was released on bail on 07.01.1984. He got himself and his brother namely Dinesh Kumar admitted, in the emergency ward of General Hospital, Gurgaon, around 10 PM on 08.01.1984. Dr. Kamal Gupta, Medical Officer, medicolegally examined Ballab Lal and his brother Dinesh Kumar. He prepared their MLRs, bearing Nos. KKG/84/6 and KKG/84/7. In these MLRs the injuries were wrongly shown by the doctor, at the instance of Ballab Lal and Dinesh Kumar. Ballab Lal and Dinesh Kumar, were referred to the Radiologist for their radiological Crl. Appeal No.221-SB of 1996 --3-- examination, who found no fracture on their person. Dr. Baljit Singh, Radiologist of x-ray Department of General Hospital, Gurgaon, on slips CR-87 and CR-88 dated 08.01.1984 reported that there was no bony injury. Ballab Lal was discharged from the hospital on 12.01.1984, whereas Dinesh Kumar was discharged on 14.01.1984. Ballab Lal was having no fracture from 08.01.1984 to 12.01.1984. At the time of his arrest, in criminal case, even Ballab Lal, did not tell the concerned Police official that he was having bony injury. Ballab Lal and his brother Dinesh Kumar, who got themselves admitted in General Hospital, Gurgaon, were medicolegally examined by Dr. Kamal Gupta, in pursuance of the criminal conspiracy hatched between them. Ballab Lal again in pursuance of the criminal conspiracy hatched by him after bribing Dr. Baljit Singh, wrongly got prepared a report of fracture, from him regarding injury no.3, mentioned in the MLR. Thereafter, a private complaint was filed by Dinesh Kumar, against Amar Nath and others in a Court at Gurgaon, on the basis of wrong and false fracture report given by Dr. Baljit Singh. False report was used in the evidence by Ballab Lal, Dinesh Kumar and Kishan Chand. All this was done by them, in order to, save Ballab Lal from criminal case, registered against him. Crl. Appeal No.221-SB of 1996 --4-- 2-A. On 15.05.1985 x-ray of the alleged injury of Ballab Lal was again done by Dr. Baljit Singh, as per the orders of the Chief Medical Officer. Even, in the report, submitted by Dr. Baljit Singh, on the basis of these x-ray films, fracture was shown. The Chief Medical Officer, Gurgaon, also sought the report of the Senior Radiologist Dr. K.B. Kamal, regarding these x-ray films. After comparing these x-ray films, NBI (no bony injury) was reported by Dr. K.B. Kamal. In the inquiry, it was found that the fracture of Ballab Lal, was wrongly shown by Dr. Baljit Singh. On the basis of this report, and the statement of Amar Nath, a case was registered. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Committing Court, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 195, , 465/34, 468/34, 471/34 and 120-B of the Indian Penal Code was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 4 The prosecution, in support of its case, examined S.M. Gupta, (PW-1), Urmil Saini, (PW-2), Shakuntla, (PW-3), Raghbir Singh, (PW-4), Dr. Akhlak Crl. Appeal No.221-SB of 1996 --5-- Ahmad, (PW-5), Dr. B.B. Aggarwal, (PW-6), Satbir Singh, Inspector, (PW-7), Khan Chand, (PW-8), Yag Dutt Sharma, (PW-9), Bhim Singh, (PW-10), Piare Lal, (PW-11), Lala Ram, (PW-12), Nahar Singh, (PW-13), Amar Nath, (PW-14), Siri Ram Chakkar, (PW-15), Vipin Kumar, (PW-16), Pritam Chand, (PW-17), Dr. G.S. Arora, (PW-18) and Dr. K.B. Kamal, (PW-19). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. Baljit Singh, accused absented himself during the course of trial and he was declared proclaimed offender, vide order dated 11.01.1994. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. The accused , however, did not lead any evidence in their defence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Ballab Lal accused, as stated hereinbefore. However, the remaining accused namely Dinesh Kumar and Kishan Chand were acquitted of the charge framed against them. Crl. Appeal No.221-SB of 1996 --6-- 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Ballab Lal, appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, submitted that the opinion allegedly given by Dr. Baljit Singh, regarding fracture on the person of Ballab Lal and the second opinion given by Dr. K.B. Kamal, that there was no fracture, were not proved by the prosecution. He further submitted that even Ballab Lal, accused could not be convicted for the offence, punishable under Section 195/120-B of the Indian Penal Code, for the simple reason that no complaint was filed by the Court, wherein false evidence was fabricated with intent to procure conviction of an offence, punishable with imprisonment for life or with imprisonment for seven years or upwards. He further submitted that, in the absence of complaint by the Court, where such evidence was fabricated, cognizance could not be taken by the Court, in view of the provisions of Section 195 of the Code of Criminal Procedure. He further submitted that since no cognizance could be taken by the Court concerned, for the aforesaid offences, the trial Crl. Appeal No.221-SB of 1996 --7-- and the conviction stood vitiated, and , as such, the accused was entitled to acquittal. 11. On the other hand, the Counsel for the respondent-State, admitted that no complaint by the Court concerned where the evidence was fabricated, for procuring the conviction of the complainant and others was made. He further submitted that the Court could take cognizance of the offence. He further submitted that the Court was right in recording conviction and awarding sentence to the accused. 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the contentions raised by the Counsel for the appellant, being based on sound footing, must succeed , for the reasons to be recorded hereinafter. Section 195 of the Code of Criminal Procedure ,1973 reads as under:- “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. (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or Crl. Appeal No.221-SB of 1996 --8-- (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, 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, 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 under section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-Clause Crl. Appeal No.221-SB of 1996 --9-- (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and sent a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (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. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the Crl. Appeal No.221-SB of 1996 --10-- appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that:- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate. (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” It is evident that a criminal case was registered against Ballab Lal. According to the complainant, wrong and false report of fracture of Ballab Lal in conspiracy with Dr. Baljit Singh, was got prepared and that report was used as fabricated evidence by Ballab Lal, Dinesh Kumar and Kishan Chand, in order to save Ballab Lal, in a criminal case, registered against him. Crl. Appeal No.221-SB of 1996 --11-- Ultimately, it was found that the report of fracture of Ballab Lal, given by Dr. Baljit Singh, was wrong. It means that according to the complainant, the false evidence was fabricated by Ballab Lal, in that criminal case, to save himself from the clutches of law. The plain reading of the provisions of Section 195 of the Code of Criminal Procedure, clearly goes to show that no Court shall take cognizance of any offence, punishable under 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 and of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified 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. Section 195 of the Code of Criminal Procedure, thus, creates a complete bar to the taking of cognizance for the offences, punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when any such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. Admittedly, no complaint either by the Court, where the false evidence of Crl. Appeal No.221-SB of 1996 --12-- fracture of Ballab Lal was fabricated, or by a Court to which such Court was subordinate ever filed, either at the time of presentation of challan, or thereafter. In this view of the matter, the Court of Additional Sessions Judge, was not competent to take cognizance of the offences, punishable under Section 195 and 120-B of the Indian Penal Code. Since the Court concerned could not take cognizance of the offence in the absence of any complaint, having been filed by the Court, where the false evidence was fabricated or by any other Court to which such Court was subordinate, the conviction and the sentence, stood vitiated. The accused was, thus, entitled to acquittal. The trial Court, was wrong in not taking into consideration, this aspect of the matter, while recording conviction and awarding sentence to the accused.The judgment of conviction and the order of sentence are, thus, liable to be set aside. The submission of the Counsel for the appellant, in this regard, thus, carries force and is accepted. 13. Even otherwise, the opinion allegedly given by Dr. Baljit Singh, regarding the existence of bony injury on the person of Ballab Lal, was not proved. Dr. S.M. Gupta, (PW-1), stated that he did not know, who conducted the radiological examination of Ballab Lal. He further stated that he could not say where the opinion given by Dr. Baljit Singh, Crl. Appeal No.221-SB of 1996 --13-- regarding old fracture of Ballab Lal was. He further stated that he did not see the original x-ray films of Ballab Lal. Raghbir Singh, Radiographer (PW-4) could not identify the signatures /initials of Dr. Baljit Singh, on bed head ticket no.88. Dr. Akhlak Ahmad, SMO, CH, Gurgaon (PW-5) stated that he could not identity the signatures of other doctors, on the bed head tickets. During cross-examination, he stated that he did not remember if he had seen the x-ray films of Ballab Lal. Dr. K.B. Kamal, (PW-19) from whom the second opinion regarding fracture on the person of Ballab Lal was obtained, was not shown the original opinion given by him. He was only shown mark 'X' alleged to be a copy of his opinion. He stated that he could not say anything about it until the original opinion was shown to him. From the evidence aforesaid, neither the opinion allegedly given by Dr. Baljit Singh, regarding fracture on the person of Ballab Lal, nor the second opinion tendered by Dr. K.B. Kamal, regarding the non- existence of fracture on the person of Ballab Lal, was proved by the prosecution, in accordance with the provisions of law. Under these circumstances, the very foundation of the case of the prosecution that Dr. Baljit Singh gave false opinion regarding fracture on the person of Ballab Lal, in pursuance of the conspiracy crumbled like a house of cards. The trial Court Crl. Appeal No.221-SB of 1996 --14-- was, thus, wrong in recording conviction of Ballab Lal, for the offence, punishable under Sections 195/120-B of the Indian Penal Code. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 22.02.1996, and the order of sentence dated 27.02.1996, are set aside. The appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required in any other case. 15. The Chief Judicial Magistrate, shall comply with the judgment promptly. (SHAM SUNDER) May 01, 2009 JUDGE dinesh