Clauses I and II of Section 195(1) (b) of CrPC cater to different offences mentioned in IPC: High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY THE 16TH DAY OF APRIL 2021 26TH CHAITHRA 1943 WP(C).No.7641 OF 2021(E AGED 51 YEARS DEPUTY DIRECTOR ENFORCEMENT DIRECTORATE KOCHI ZONAL OFFICE AK SESHADRI ROAD COCHIN 682 011 TUSHAR MEHTAASST.SGI FOR THE PETNRS ADV. HARIN P.RAVAL WITH SR.GP.SUMAN THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 09 04 2021 ALONG WITH WP(C).8920 2021(L) THE COURT ON 16 04 2021 DELIVERED THE FOLLOWING WP(C).7641 & 8920 21 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY THE 16TH DAY OF APRIL 2021 26TH CHAITHRA 1943 WP(C).No.8920 OF 2021(L AGED 51 YEARS S O.PAUL RAJ DEPUTY DIRECTOR ENFORCEMENT DIRECTORATE KOCHI ZONAL OFFICE AK SESHADRI ROAD COCHIN 682011 RESIDING AT 4L DD NEST KATHRIKKADAVU KALOOR P.O. COCHIN 17 TUSHAR MEHTAHAVING BEEN FINALLY HEARD ON 09 04 2021 ALONG WITH WP(C).7641 2021(E) THE COURT ON 16 04 2021 DELIVERED THE FOLLOWING WP(C).7641 & 8920 21 C.R V.G.ARUN J W.P(C).Nos. 7641 and 89221 Dated this the 16th day of April 2021 W.P(C).No.76421 The instant writ petition is filed by the Deputy Director Enforcement Directorate Kochi Zonal Office aggrieved by the registration of Exhibit P1 FIR by the Crime Branch wing of the State Police. The essential facts leading to the writ petition are as under On 06.07.2020 O.R.No.20 was registered at the Customs CommissionerateKochi consequent to seizure of 30 Kgs of gold worth Rs.14.82 Crores at the Thiruvananthapuram International Airport. The seizure was effected while the gold was being smuggled camouflaging it as diplomatic baggage to the UAE Consulate. During the course of investigation it was revealed that the accused had committed offences under the Unlawful Activities Act 1967also. This resulted in the National Investigation Agency NIA) registering a case against the very same accused alleging commission of offences under Sections 17 and 18 of the UAPA. As the investigation progressed further commission of the offence punishable WP(C).7641 & 8920 21 under Section 4 of the Prevention of Money Laundering Act 2002 PMLA) also came to light. Thereupon ECIR KCZO0 31 2020 was registered by the Enforcement Directorate on 13.07.2020 arraigning three persons as accused one Smt. Swapna Suresh being the second accused and Sri. Sandeep Nair the fourth accused. After registration of the case the ED filed Exhibit P5 complaint before the Special Court for PMLA cases of the Cr.P.C the very registration of the crime is illegal. Attention is drawn to the decision in Patel Laljibhai Somabhai v. State of Gujarat 2 SCC 376] wherein the Honourable Supreme Court has exposited on the purpose behind the enactment of Section 195 of the Cr.P.C 5. Sri.S.V.Raju contended that abetment of an offence punishable with imprisonment under Section 116 of the IPC would apply only on the ingredients of Section 107 being satisfied which as far as the instant case is concerned are completely absent. It is contended that in order to attract Section 167 of the IPC a public servant charged with WP(C).7641 & 8920 21 the preparation or translation of any document or electronic record should have framed prepared or translated that document or electronic document in a manner which he knows or believes to be incorrect. Further such framing preparation or translation should be with intention to cause or knowing that his action is likely to cause injury to any person. That in the absence of any allegation of the ED officials having framed or prepared any document or electronic document the offence under Section 167 of the IPC is not attracted. It is contended that none of the ingredients necessary to constitute the offence of fabricating false evidence under Section 192 of the IPC are made out and even in cases where the ingredients are made out the prohibition under Section 195 of the Cr.P.C would apply. As regards the offence under Section 195A of the IPC it is contended that only a witness or any other person can file a complaint in relation to the offence and the words “any other person” should be read ejusdem generis. Hence a person totally unconnected to the witness and the case cannot file the complaint. Reference is made to the statement of the second accused dated 13.08.2020 wherein to a query as to whether the Chief Minister of Kerala or his wife had called her personally and whether they were close to her the second accused had answered that they were neither close to her nor had they called her personally and that all her conversations with the Chief Minister had been for official purposes only. It is contended that if the intention WP(C).7641 & 8920 21 of the investigating officer was to implicate the Chief Minister that answer would not have been recorded. According to the learned Counsel falsity of the allegations is evident from the fact that in spite of the repeated opportunities available to appraise the jurisdictional court of the attempt to coerce her the second accused had never raised such a complaint. Reference is made to Exhibits P15 and P16 remand orders dated 11.08.2020 and 14.08.2020 wherein the Special Judge after interacting with accused Nos.1 2 and 4 had observed that the accused appeared to be in sound health and mind and had no complaints. Particular emphasis is laid on paragraph 7 of Exhibit P17 order wherein the learned counsel for Smt. Swapna Suresh had alleged that his client was tortured during questioning by the Enforcement Officials without the presence of a woman officer. It is hence contended that the unbelievable narrative about the presence of women civil police officers while Smt. Swapna Suresh was questioned by ED officials is nothing but a cooked up story 6. Sri. K.M.Nataraj focused on the bar under Section 195(1)(b)(i of the Cr.P.C and contended that the very purpose of that provision is to prevent instances like the one under consideration. That the alleged act of coercing the third accused to name innocent persons as her accomplices being in relation to a proceeding pending before the Special Court registration of the crime and investigation into such allegation is barred. The distinction between Sections 195(1)(b)(i) and WP(C).7641 & 8920 21 195(1)(b)(ii) is pointed out by emphasising on the import of the words “in relation to any proceeding in any court” in the former as against the words “in respect of a document produced or given in evidence in a proceeding in any court” in the latter. It is contended that the former expression is of much wider amplitude than the latter as held in Bhima Razu Prasad v. State and of the Supreme Court in Abhinandan Jha and Others v. Dinesh Mishra 3 SCR 668] State of Bihar and Another v. J.A.C.Saldanha and Others 1 SCC 554] and the Constitutional Bench decision in Lalita Kumari v Government of Uttar Pradesh and Others 2 SCC 1]. It is contended that the bar under Section 195 of the Cr.P.C is only against taking cognizance and does not interdict investigation by the Police Support for this argument is garnered from the decisions in State of Punjab v. Raj Singh and Another 2 SCC 391] M.Narayandas v. State of Karnataka and Others11 SCC WP(C).7641 & 8920 21 251] Shafi @ Kozhi Shafi v. Abdul Salam and Others and Nirmaljit Singh Hoon v. The State of West Bengal and Another3 SCC 753]. It is submitted that the attempt of the petitioner is to somehow thwart the investigation and prevent the truth from coming out which is evident from the undue haste with which the writ petition has been filed. That the petitioner and other officials of the ED had compelled and coerced the accused to give statements implicating highly placed personalities in the State Government which is a heinous offence that needs to be unearthed and the culprits brought to book. It is also contended the the statements of the accused recorded while they were in ED custody cannot be termed as statements under Section 50(3) of PMLA. The circumspection required while exercising the inherent power under Section 482 of the Cr.P.C and the well settled position of the High Court being not expected to sift the evidence for deciding factual issues involved while exercising such power is reiterated with the aid of W.P(C).No.89221 8. The challenge in this writ petition is against the registration of Crime No.98 CD ALP D 2021 at the Crime Branch Police Station Ernakulam vide Exhibit P1 FIR dated 27.03.2021. The short facts leading to the registration of the crime are as under WP(C).7641 & 8920 21 Sri.Sandeep Nair presently the fourth accused ECIR ACZO 31 2020 registered by the Enforcement Directorate had sent Exhibit P2 letter dated 05.03.2021 to the Special Judge alleging that he was compelled by the petitioner to name the Chief Minister and certain others as accomplices to the crime. News about the letter published in the visual media was noticed by Advocate R.Sunil Kumar a practising lawyer. Being of opinion that the deliberate attempt to drag the State’s Chief Minister and others into the crime should be investigated Advocate Sunil Kumar sent a complaint to the Additional Director General of Policewas registered for offences under Sections 116 167 192 193 and 195A of IPC. During the course of investigation of the crime the Crime Branch sought permission to question and record the statement of Sri. Sandeep Nair from the Central Prison Thiruvananthapuram and the request was allowed by the Special Court as per Exhibit P3 order. The challenge in this writ petition is against Exhibit P1 FIR and Exhibit P3 order and is founded on the same grounds as in W.P(C).No.7641 of 2021. The additional ground of challenge is that registration of a second crime based on the very same allegations as in the first crime is barred. In support of this challenge reference is made to the statement in the first crimeof another accused in the case Sri.Sandeep Nair having also written a similar complaint to the District and Sessions WP(C).7641 & 8920 21 Judge Ernakulam alleging threat and coercion to give false evidence against the Chief Minister and that the entire matter require an in depth investigation by registering an FIR. Countering the challenge learned counsel for the respondent State highlighted the marked differences between the incidents and the allegations in the two crimes which according to the learned counsel can by any stretch of imagination be treated to be the same or even similar. Elaborate legal contentions are put forth by both sides relying on the decisions of the Apex Court in Ram Lal Narang v. State 2 SCC 322] State of West Bengal v. Swapan Kumar Guha and Others1 SCC 561] T.T.Antony v. State of Kerala and Others 6 SCC 181] Upkar Singh v. Ved Prakash and Others13 SCC 292] etc 9. The legal issues arising for consideration in both writ petitions except the challenge on the ground that Exhibit P1 in W.P(C).89221 is the second FIR being common both writ petitions are being 10. The challenge against maintainability of the writ petition on the premise that the petitioner has filed the case in his individual capacity cannot hold good. Undoubtedly the writ petition is filed by the petitioner in his capacity as the Investigating Officer in ECIR ACZO 31 2020. The fact that the writ petition is filed with official WP(C).7641 & 8920 21 sanction is evident from the appearance of the learned Solicitor General. At the same time I find substance in the objection raised by the Sri. Raval against the manner in which the documents pertaining to the ED case is produced and persons who are not made parties named in the writ petition. The explanation offered for production of the documents is that they form part of Exhibit P5 complaint. If that be so the petitioner ought to have produced the entire set of documents appended to Exhibit P5 complaint rather than producing the documents of his choice. Even though the petitioner s action is liable to be deprecated that does not warrant dismissal of the writ petition 11. Moving on to the merits of the contentions urged the first and foremost is the contention based on the prohibition under Section 195 of the Cr.P.C. Needless to say that the finding on that contention will have an impact on the other legal points. Indisputably the crimes are registered for offences punishable under Sections 116 120B 167 192 193 and 195A of the IPC of which Section 193 is an offence falling within the ambit of Section 195(1)(b)(i) of the Cr.P.C. In order to understand the scope and ambit of Section 195 of Cr.P.C it is necessary to analyse and understand the provision “195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in WP(C).7641 & 8920 21 1) No Court shall take cognizance— a)(i) of any offence punishable under Sections 172 to 188 both inclusive) of the Indian Penal Codeor ii) of any abetment of or 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 Codenamely Sections 193 to 196199 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 clauseor sub clauseexcept on the complaint in writing of that Court 115[or by such officer of the Court as that Court may authorise in writing in this behalf] or of some other Court to which that Court is 2) Where a complaint has been made by a public WP(C).7641 & 8920 21 servant under clause of sub section any authority to which he is administratively subordinate may order the withdrawal of the complaint and send 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 of sub section 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 4) For the purposes of clause of sub section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the 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 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.” 12. The purpose of enacting Section 195 2 SCC 376]. The relevant portion of the said judgment reads as under “The underlying purpose of enacting Section 195(1)(b and and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court s control because of their direct impact on the judicial process. It is the judicial process in other words the administration of public justice which is the direct and immediate object or victim of those offence and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 CrPC of the aggrieved parties directly initiating the criminal proceedings The offences about which the court alone to the exclusion of the aggrieved private parties is clothed with the right to complain may therefore be appropriately considered to be only those offences committed by a party to a proceeding in WP(C).7641 & 8920 21 that court the commission of which has a reasonably close nexus with the proceedings in that court so that it can without embarking upon a completely independent and fresh inquiry satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It therefore appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 196(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party.” The reason behind bringing certain specified offences under the purview of Section 195 of the Cr.P.C is because the commission of those offences have direct impact on an ongoing judicial proceeding and thereby on the administration of justice. Section 193 of the IPC being one such offence the prohibition under Section 195 of the Cr.P.C 13. The next question is whether the prohibition under Section 195(1)(b)(i) of Cr.P.C is from taking cognizance only or whether the Police is interdicted from conducting investigation of the offences enumerated in the section. Senior Counsel Shri.Harin P. Rawal argued with the aid of precedents that Section 195(1)(b) does not prohibit registration of crimes and investigation by the police. This argument is countered by Senior Counsel Sri. K.M. Nataraj by drawing a distinction between Sections 195(1)(b)(i) and 195(1)(b)(ii). It is contended that all the offences mentioned in Section 195(1)(b)(i) are non cognizable and WP(C).7641 & 8920 21 hence the Police cannot register crime without following the procedure under Section 155 of the Cr.P.C and that the provision considered in the decisions cited by Mr.Raval was Section 195(1)(b)(ii) wherein the offences are cognisable. In order to address the contention it is necessary to consider the cited decisions 14. In Nirmaljit Singh Hoon v. State of W.B. 3 SCC 753 the offences were under Sections 463 471 475 476 of the IPC and hence the Apex Court held that police authorities have a statutory right under Sections 154 and 156 of the Code to investigate into a cognizable offence without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561 A of the Codeto interfere with the exercise of that statutory power 15. In State of Punjab v. Raj Singh 2 SCC 391] the appeal had arisen from the order by which the High Court had quashed an FIR registered during the course of a civil suit alleging commission of offences under Sections 419 420 467 and 468 of the IPC. The FIR was quashed on the ground that Section 195(1)(b)(ii) of the Cr.PC prohibited entertainment of and investigation into the offences by the police. While interfering with that judgment the Honourable Supreme Court held that from a plain reading of Section 195 Cr.PC it is manifest that the prohibition comes into operation only at the stage when the WP(C).7641 & 8920 21 court intends to take cognizance of an offence under Section 190(1 Cr.PC and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence even if the offence is alleged to have been committed in or in relation to any proceeding in court. The Apex Court further held that the statutory power of the police to investigate under the Code is in no way controlled or circumscribed by Section 195 of the Cr.PC. That upon the charge sheetif any filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) of the Cr.PC but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR and the materials collected during investigation provided it forms the requisite opinion and follows the procedure laid down in Section 340 of the Cr.PC 16. The distinction between Sections 195(1)(b)(i) and 195(1(b)(ii has been succinctly laid down in Narendra Kumar Srivastava v State of Bihar 3 SCC 318] in the following words “13. It is clear from sub section of Section 195 CrPC that the section deals with two separate set of offences i) of any offence punishable under Sections 193 to 196 both inclusive) 199 200 205 to 211and 228 IPC when such offence is alleged to have been committed in or in relation to any proceeding in any court of any offence described in Section 463 or punishable under Section 471 Section 475 or Section 476 IPC 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.and Section 195(1)(b)(ii) are clearly distinct. The first category of offences refers to offences of false evidence and offences against public justice whereas the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court 21. As already mentioned clauses under Section 195(1 b) CrPC i.e. sub section 195(1)(b)(i) and sub section 195(1)(b ii) cater to separate offences. Though Section 340 CrPC is a generic section for offences committed under Section 195(1 b) the same has different and exclusive application to clausesandof Section 195(1)(b) CrPC 23. In Sachida Nand Singh2 SCC 493 : 1998 SCC660] this Court had dealt with Section 195(1)(b)(ii) CrPC unlike the present case which is covered by the preceding clause of the section The category of offences which fall under Section 195(1)(b)(i CrPC refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) CrPC where a dispute could arise whether the offence of forging a document was WP(C).7641 & 8920 21 committed outside the court or when it was in the custody of the court. Hence this decision has no application to the facts of the present case 24. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) CrPC as the offence is punishable under Section 193 IPC. Therefore the Magistrate has erred in taking cognizance of the offence on the basis of a private complaint. The High Court in our view has rightly set aside the order of the Magistrate. However having regard to the facts and circumstances of the case we deem it proper to set aside the costs imposed by the High Court.” 17. The Honourable Supreme Court had occasion to consider this question in Bandekar Brothers Pvt. Ltd and Anr v Prasad Vasudev Keni etc.the relevant portion of which is extracted hereunder “19. At this stage it is important to understand the difference between the offences mentioned in Section 195(1 b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC Section 195(1)(b)(i) of the CrPC applies. What is important is that once these sections of the IPC are attracted the offence should be alleged to have been committed in or in relation to any proceeding in any Court Thus what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court 22. Contrasted with Section 195(1)(b)(i) Section 195(1 WP(C).7641 & 8920 21 b)(ii) of the CrPC speaks of offences described in Section 463 and punishable under Sections 471 475 or 476 of the IPC when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. What is conspicuous by its absence in Section 195(1)(b)(ii) are the words “or in relation to” making it clear that if the provisions of Section 195(1)(b)(ii) are attracted then the offence alleged to have been committed must be committed in respect of a document that is custodia legis and not an offence that may have occurred prior to the document being introduced in court proceedings. Indeed it is this distinction that is vital in understanding the sheet anchor of the Appellant s case namely this Court s judgment in Iqbal Singh Marwahof the CrPC is attracted the ratio of Iqbal Singh Marwahwhich approved Sachida Nand Singh v State of Bihar 2 SCC 493 is not attracted and that therefore if false evidence is created outside the Court premises attracting Sections 191 192 of the IPC the aforesaid ratio would not apply so as to validate a private complaint filed for offences made out under these sections.” 18. Recently in Bhima Razu Prasad v. Statethe Apex Court had occasion to consider the import of the words “in relation to” in Section 195(1)(b)(i). Paragraph 51 therein which is contextually relevant reads as under “51. The purpose of Explanation 2 to Section 193 IPC is evidently to ensure that a person who fabricates false WP(C).7641 & 8920 21 evidence before an investigating or inquiring authority prior to the trial of the case does not escape penalty. This encompasses all nature of proceedings whether civil or criminal. However whether the commission of such offence would require the complaint of a Court under Section 195(1)(b i) would depend upon the authority before whom such false evidence is given. For example if a person gives false evidence in an inquiry before the Magistrate under Section 200 CrPC that would undoubtedly be an offence committed before a Court under Section 195(1)(b)(i) CrPC. However this would not be the case where false evidence is led before an investigating officer prior to the Court having taken cognizance of the offence or the case being committed for 19. It may be pertinent to note that as far as the instant cases are concerned the Special Court has taken cognizance of the offences under the PMLA on 12.10.2020. As such recording of the accused’s statements would undoubtedly fall within the import of the words “in relation to any proceeding in any court” mentioned in Section 195(1)(b 20. The next question to be considered is whether the prohibition under Section 195(1)(b)(i) could be made applicable to all the offences or should be confined to the offences enumerated therein. The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied nor the administration of justice not meddled with if the other offences are interwoven and inseparable from the offences within ambit of Section 195(1)(b)(i) WP(C).7641 & 8920 21 necessarily the prohibition will have to be extended to the other offences also. This question was considered in Bandekar Brothers’ case and answered at paragraph 44 of the judgment as “44. Equally important to remember is that if in the course of the same transaction two separate offences are made out for one of which Section 195 of the CrPC is not attracted and it is not possible to split them up the drill of Section 195(1)(b) of the Cr.PC must be followed.” Basir ul Huq v. State of W.B. is yet another precedent which had considered the question of distinct offences disclosed by the same facts being clubbed along with offences falling within the ambit of Section 195. After holding that the bar would not apply to distinct offences the Apex Court clarified the position as “14. Though in our judgment Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and WP(C).7641 & 8920 21 then convicting him of an offence to which it does upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being one punishable under some other section of the Indian Penal Code though in truth and substance the offence falls in the category of sections mentioned in Section 195 of the Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.” 21. The above discussion leads to the only possible conclusion of the bar under Section 195(1)(b)(i) Cr.P.C being applicable to the offences mentioned in the two FIRs the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that if such attempts had fructified it would have definitely sullied the proceedings of the court and impacted administration of justice. Therefore even though the other offences alleged are under Section 167 and 195A of IPC they are undoubtedly interwoven with and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.PC Adopting the same reasoning it has to be held that the offence under Section 193 IPC being a non cognisable offence the Crime Branch could not have registered the crimes without following the procedure under Section 155(1) Cr.P.C despite the deeming clause under Section 155(4). Hence the remedy of the aggrieved persons was to approach WP(C).7641 & 8920 21 the Special Court. Having held so it will be apposite to have a look at Section 340 of Cr.PC “340. Procedure in cases mentioned in Section 195.—(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clauseof sub sectionof Section 195 which appears to have been committed in or in relation to a proceeding in that Court or as the case may be in respect of a document produced or given in evidence in a proceeding in that Court such Court may after such preliminary inquiry if any as it thinks necessary — a) record a finding to that effect b) make a complaint thereof in writing c) send it to a Magistrate of the first class having d) take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate and e) bind over any person to appear and give evidence before such Magistrate.” 22. From a reading of the Section it is evident that any aggrieved person can alert the court about commission of a crime committed WP(C).7641 & 8920 21 with intent to mislead the court or to scuttle the proceedings pending before it and that even in the absence of any complaint the court is at liberty to take action on receiving information regarding commission of offences enumerated under Section 195(1)(b). In N Natarajan v. B.K. Subba Rao2 SCC 76] the Apex Court has upheld the right of any aggrieved citizen to approach the jurisdictional court under Section 340 in the following words “8. In our view it is not necessary to pursue the approach of either of the parties. It is well settled that in criminal law a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 CrPC there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC if in respect of any offence law can be set into motion by any citizen of this country we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter the wording of Section 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise Assuming that the complaint may have to be made at the instance of a party having an interest in the matter still the court can take action in the matter otherwise than on a complaint that is when it has received information as to a crime having been committed covered by the said provision Therefore it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has WP(C).7641 & 8920 21 locus standi to present the complaint before the Designated The point that emerges is that either on being alerted through an application or on getting information regarding the commission of the offence under Section 195(1)(b) the jurisdictional court can conduct a preliminary enquiry and form the opinion whether it is expedient to conduct an enquiry. Further if convinced about the need for an enquiry the court can record its finding to that effect and make a complaint in writing and send it to the magistrate of first class having 23. As far as the instant cases are concerned the Special Court has already received a complaint from Sri.Sandeep Nair and has allowed the application submitted by the Crime Branch to question him in jail. The 161 statement of Sri.Sandeep Nair recorded thereafter was made available to me in a sealed cover. In my considered opinion while interdicting the Police from continuing the investigation interest of justice requires that the Special Judge be permitted to look into the materials collected by the Crime Branch treating it as the information mentioned in Section 340(1) so as to decide whether it is expedient to conduct an enquiry In the result the FIR and further proceedings in Crime Nos. 921 and 921 of Crime Branch Police Station are quashed. The Investigating Officers shall forthwith submit all records pertaining to the crimes before the Special Court in a sealed cover. The learned WP(C).7641 & 8920 21 Special Judge can look into those records and other materials if any available while deciding whether it is expedient to conduct an enquiry The writ petitions are disposed of as above Sd V.G.ARUN JUDGE WP(C).7641 & 8920 21 APPENDIX OF WP(C) 7641 2021 PETITIONER S S EXHIBITS TRUE COPY OF THE FIR NO.0094 2021 DATED 17.3.2021 OF CRIME BRANCH POLICE STATION JFCM II ERNAKULAM TRUE COPY OF THE JUDGMENT DATED 25.1.2021 PASSED BY THIS HON BLE COURT IN B A TRUE COPY OF THE ORDER DATED 5.3.2021 PASSED BY THE HON BLE SUPREME COURT IN SLP TRUE COPY OF THE ORDER DATED 21.8.2020 IN CRL.MC NO.1576 2020 OF THE COURT OF SESSIONS ERNAKULAM TRUE COPY OF THE COMPLAINT FILED UNDER S. 44 AND 45 AND PMLA BEFORE THE SPECIAL COURT ERNAKULAM DATED 6.10.2020 TRUE COPY OF THE ORDER DATED 15.10. 2020 PASSED BY THE HON BLE SPECIAL COURT FOR PMLA CASES ERNAKULAM IN CRL. M. C TRUE COPY OF THE ORDER DATED 29.10.2020 GRANTING CUSTODY OF SIVASANKAR IN CRL.M.P.NO.1588 OF 2020 TRUE COPY OF THE STATEMENT GIVEN BY MS. SWAPNA SURESH U S.50 OF PMLA DATED TRUE COPY OF THE STATEMENT OF MS. SWAPNA SURESH DATED 14.12.2020 TRUE COPY OF THE STATEMENT OF MS. SWAPNA SURESH DATED 15.12.2020 TRUE COPY OF THE STATEMENTS OF SANDEEP NAIR TRUE COPY OF THE STATEMENTS OF SANDEEP NAIR TRUE COPY OF THE ADDITIONAL STATEMENT OF SANDEEP NAIR DATED 10.8.2020 WP(C).7641 & 8920 21 EXHIBIT P13REMANDING TO JUDICIAL CUSTODY OF ACCOUSED 1 2 AND 4 TRUE COPY OF THE STATEMENT OF MS.SWAPNA SURESH DATED 13.8.2020 TRUE COPY OF THE ORDER DATED 15 10 2020 PASSED BY THE SPECIAL COURT PMLA IN CRL. MC NO.1920 2020 REJECTING BAIL APPLICATION OF TRUE COPY OF THE SUPPLEMENTARY COMPLAINT DATED 24.12.2020 SUBMITTED BEFORE THE WP(C).7641 & 8920 21 SPECIAL COURT OF PMLA UNDER S. 44 AND 45 OF TRUE COPY OF THE ORDER DATED 28.10.2020 PASSED BY THIS HON BLE COURT IN B.A.NO.6752 TRUE COPY OF THE ORDER DATED 17.11.2020 PASSED BY THE HON BLE SPECIAL COURT FOR PMLA CASES AT ERNAKULAM REJECTING BAIL APPLICATION OF M.SIVASANKAR TRUE COPY OF THE STATEMENT DATED 11.12.2020 OF SMT. SIJIVIJAYAN CIVIL POLICE OFFICER 9692) PALARIVATTOM POLICE STATION COCHIN CITY ATTACHED WITH READABLE COPY OF THE SAME AND THE TRUE ENGLISH TRANSLATION TRUE COPY OF THE PETITION DATED 5.3.2021 OF SH. SANDEEP NAIR FILED BEFORE THE HON BLE SESSIONS COURT ERNAKULAMDATED 4.3.2021 BEFORE THIS HON BLE COURT CRL MC 5743 OF 2020 TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHASURESH DATED 5.8.2020 RECORD BY THE ENFORCEMMENT DIRECTORATE U S 50 OF THE TRUE COPY OF THE STATEMENT OF MS. SWAPNA PRABHA SURESH DATED 6 8 2020 RECORDED BY THE ENFORCEMENT DIRECOTORATE US 50 OF THE TRUE COPY OF THE STATMENT F MS SWAPANA PRABHA SURESH DATED 7.8.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S 50 OF THE TRUE COPY OF THE STATEMENT OF MS SWAPNA PRABHA SURESH DATED 8.8.2020 RECORDED BY THE ENFORMEMENT DIRECTORATE U S 50 OF THE WP(C).7641 & 8920 21 TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHA SURESH DATED 10.8.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S 50 OF THE PMLA TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHA SURESH DATED 13.8.2020 RECORDED BY THE ENFORCEMENT DIRECOTRATE U S 50 OF THE PMLA TRUE COPY OF THE STATEMENT OF MS SWAPNAPRABHA SURESH DATED 15.8.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S 50 OF THE PMLA EXHIBIT P35: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 16.8.2020 EXHIBIT P36: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 3.11.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P37: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 10.11.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P38: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 14.12.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P39: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 15.12.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P40: COPY OF STATEMENT OF MS.SWAPNA PRABHA SURESH DATED 16.12.2020 RECORDED BY THE ENFORCEMENT DIRECTORATE U S.50 OF THE PMLA EXHIBIT P41: COPY OF CRL.MC.1576 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM DATED 13.8.2020 EXHIBIT P42: COPY OF ORDER DATED 21.8.2020 IN CRL.MC.NO.1576 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM EXHIBIT P43: COPY OF CRL.MC.NO.1899 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM DATED 5.10.2020 EXHIBIT P44: COPY OF ORDER DATED 13.10.2020 IN CRL.MC.1899 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM EXHIBIT P45: COPY OF CRL.MC.NO.1920 OF 2020 OF THE SESSIONS AND SPECIAL COURT FOR TRIAL FOR PMLA DATED 7.10.2020 EXHIBIT P46: COPY OF ORDER DATED 15.10.2020 IN CRL.MC.NO.1920 OF 2020 OF THE SESSIONS AND SPECIAL COURT FOR PMLA CASES EXHIBIT P47: COPY OF REGULAR BAIL APPLICATION IN CRL.M.P.NO.221 2021 IN SC.NO.610 OF 2020 OF SESSIONS COURT DATED 27.1.2021 EXHIBIT P48: COPY OF ORDER DATED 2.11.2020 IN CRL.M.P.NO.1593 OF 2020 OF THE SESSIONS AND SPECIAL COURT FOR PMLA EXHIBIT P49: COPY OF ORDER IN CRL.M.P.NO.1640 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM DATED 9.11.2020 WP(C).7641 & 8920 21 EXHIBIT P50: COPY OF ORDER DATED 14.12.2020 IN CRL.M.P.NO.1808 OF 2020 OF THE PRINCIPAL SESSIONS COURT ERNAKULAM RESPONDENT S S EXHIBITS A TRUE COPY OF THE LETTER DATED 20.11.2020 WP(C).7641 & 8920 21 APPENDIX OF WP(C) 8920 2021 PETITIONER S S EXHIBITS TRUE COPY OF THE FIR NO.98 CB ALP D 2021 DATED 27.03.2021 WITH ENGLISH TRANSLATION TRUE COPY OF THE PETITION DATED 05.03.2021 SUBMITTED BEFORE THE HONOURABLE DISTRICT AND SESSIONS COURT ERNAKULAM TRUE COPY OF THE ORDER DATED 31.03.2021 IN CRL.M.P.NO.731 2021 IN SC NO.610 2020 OF SESSIONS COURT ERNAKULAM EXHIBIT P4: COPY OF APPLICATION DATED 31.3.2021 IN CRL.M.P.NO.731 OF 2021 IN SC.NO.610 OF 2020 ON THE FILES OF THE DISTRICT AND SESSIONS JUDG ERNAKULAM WITH ENGLISH TRANSLATION EXHIBIT P5: COPY OF PETITION DATED 3.4.2021 SEEKING RECORDING OF S.164 CRPC FILED BEFORE THE CJM ENRNAKULAM WITH ENGLISH TRANSLATION RESPONDENT S S EXHIBITS COPY OF LETTER DATED 20.11.2020 FORWARDING LETTER DATED 05 03 2021 BY THE SUPERINTENDENT CENTRAL PRISON ADDRESSED TO PRINCIPAL SESSIONS COURT ERNAKULAM

Summary: Offences dealt under Section 195(1) (b)(i) and Section 195(1)(b)(ii) of the CrPC are distinct. Where the facts mentioned in a complaint attract the provisions of Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies. However, the most important fact to be considered upon in case of dispute is the alleged offense should be committed to or in relation to any proceeding in any Court. The offense punishable here does not have to be committed only in any proceeding in any Court but can also be an offense alleged to have been committed in relation to any proceeding in any Court. This remarkable judgment was passed by the Kerala High Court in the matter of P. RADHAKRISHNAN V STATE OF KERALA [WP(C). No.7641 OF 2021] by Honourable Justice V.G.Arun. This writ petition was filed by the Deputy Director, Enforcement Directorate, Kochi Zonal Office, who was aggrieved by the registration by the Crime Branch wing of the State Police. The essential facts leading to the writ petition, are, a complaint was registered at the Customs Commissionerate (Preventive), Kochi, consequent to the seizure of 30 Kgs of gold worth Rs.14.82 Crores at the Thiruvananthapuram International Airport. The seizure was affected while the gold was being smuggled, camouflaging it as diplomatic baggage to the UAE Consulate. During the course of the investigation, it was revealed that the accused had committed offenses under the Unlawful Activities (Prevention) Act, 1967 (UAPA) also. This resulted in the National Investigation Agency registering a case against the very same accused, alleging commission of offenses under Sections 17 and 18 of the UAPA. Smt. Swapna Suresh was the second accused and Sri. Sandeep Nair the fourth accused. Later, Smt. Swapna Suresh, aired a video through an online media channel, wherein she alleged that the ED officials had made her sign the Section 50 statements without allowing her to read its contents and that, she had been compelled by the officials to implicate the Chief Minister of the State. IT was also alleged that ED officials coercing and cajoling the accused to give statements implicating the Chief Minister and others. Thus, the challenge against registration of the FIR and legality of the Crime Branch investigation is the issue in this case. The Court deliberated upon scope and ambit of Section 195 of Cr.P.C. and stated that “The reason behind bringing certain specified offenses under the purview of Section 195 of the Cr. P.C is because the commission of those offenses has a direct impact on an ongoing judicial proceeding and thereby, on the administration of justice. Section 193 of the IPC being one such offense, the prohibition under Section 195 of the Cr. P.C will apply.” While drawing a distinction between a distinction between Sections 195(1)(b)(i) and 195(1)(b)(ii) Court relied on State of Punjab v. Raj Singh and stated that, “Honourable Supreme Court held that from a plain reading of Section 195 Cr.PC, it is manifest that the prohibition comes into operation only at the stage when the court intends to take cognizance of an offense under Section 190(1) Cr.PC, and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, even if the offence is alleged to have been committed in, or in relation to, any proceeding in court.” The Court also added, “The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied, nor the administration of justice not meddled with, if the other offences are interwoven and inseparable from the offences within the ambit of Section 195(1)(b)(i), necessarily, the prohibition will have to be extended to the other offenses also.” Thus, the Court stated that “the bar under Section 195(1)(b)(i) Cr. P.C being applicable to the offenses mentioned in the two FIRs, the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that, if such attempts had fructified, it would have definitely sullied the proceedings of the court and impacted the administration of justice. Therefore, even though the other offenses alleged are under Section 167 and 195A of IPC, they are undoubtedly interwoven with and inseparable from the offense under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.P.C.”