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PETITIONER: KAMLA PRASAD SINGH

       Vs.

RESPONDENT: HARI NATH SINGH & ANR.

DATE OF JUDGMENT: 27/04/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR   19            1967 SCR  (3) 828  CITATOR INFO :  R          1976 SC 777  (15)

ACT:    Indian  Penal  Code.  (45  of  1860)  Ss.  192  and   218 --Difference--False     evidence    used     in     judicial proceedings--Public  servant prepared false  record--Private complaint, if can be made.     Code  of Criminal Procedure, (5 of 1898) S.  195   False evidence   used  in  judicial  proceedings--Public   servant prepared false record--Private complaint can be made.

HEADNOTE:     The appellant. a private person, filed three  complaints under  s.  218 I.P.C. for the prosecution  of  respondent  1 charging  him  in  each  ease  with  abetment  of   offences committed  by  three  public servants.   In  each  complaint respondent  1 was a co-accused with another--in one with  an Ahmad of Tahsildar’s Court. in another with one Lekhpal, and in  the  third  with the another  Lekhpal.   The  Ahmad  was alleged  10 have intentionaIIy made a false entry about  the case  intending  that the false entry should be  used  in  a judicial  proceeding  and  wrong  opinion  be  formed,   the Lekhpals  were alleged to have caused the preparation of  an incorrect  Khasra  knowing  to be  likely  that  they  would thereby  cause  loss  or  injury  to  the  appellant.    The respondent  1  filed an application under     561-A  Cr.P.C. slating  that  the  offence, if any, was one  under  s.  193 I.P.C. and the provisions of s. 195 Cr.P.C. barred   private complaints, which the High Court accepted.  In appeal,  this Court,     HELD: The bar of private complaints applied 10 the  case of Ahmad, but not to those of Lekhpals.  1832 C-D]     The  difference between ss. 192 and 218 I.P.C.  is  that the  former  deals with judicial proceeding  and  the  false evidence  is intended to be used in a  judicial  proceeding, while  the latter deals with public servants, and there  the gist is the international preparation of false record with a view  of saving or injuring any person or property and  need not have relation to a judicial proceeding as such. I830 D]     Section 192 I.P.C. covers the case against the Ahmad and respondent  1  and the offence is punishable  under  s.  193 I.P.C. which is mentioned in s.. 195(1)(b) Cr.P.C.  No Court

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can  take cognizance of  an offence under s. 193  except  on the complaint in writing of such court. The alleged  offence against the Lekhpals and respondent 1, their abettor, in the other two cases was of a different order.  The offence of s. 218  I.P.C. is not a minor offence included within  s.  192. It  is  distinct  offence which  can  be  proceeded  against without the bar of s. 195 Cr.P.C.  The offence was  complete the moment the false record was made with the said intention and it was not necessary for the completion of this  offence that  the record should be used in a judicial proceeding  so as to cause an erroneous opinion to be formed touching on  a point  material  to the result of such proceeding.   In  the Ahmad’s   case this latter condition was the most  important ingredient. [831 B-C, D-G]

JUDGMENT: CRIMINAL    APPELLATE JURISDICTION:  Criminal  Appeals  Nos. 244-246 of 1964.  829 Appeals from the judgment and order dated February 19,  1964 of the Allahabad High Court in Criminal Misc.   Applications Nos. 1853, 3043 and 3044 of 1963. W.S.  Barlingay,  J. C. Jalwar and R. L. Kohli,  for  the appellant (in all the appeals). J.P. Goyal and R. B. Pathak, for respondent No. 1 (in all the appeals). The Judgment of the Court was delivered by Hidayatullah, J. Kamla Prasad Singh the appellant had  filed three  complaints  in the Court of the  Additional  District Magistrate,  (Judicial)  Varanasi  for  the  prosecution  of Harinath Singh (respondent No. 1) under s. 218 Indian  Penal Code.  In each of these complaints Harinath was a co-accused with another.  In one, it was Mangla Prasad Pandey,  Ahlmad, Court  of  Tahsildar,  Sadar Varanasi,  in  another  it  was Ramchander Lekhpal of Village Balua and in the third it  was Ram  Samravlal Lekhpal of Village Cholapore.  In  each  case Harinath  Singh  was  said  to  have  abetted  the   offence committed by his co-accused.  The circumstances in which the complaints  were lodged were common and may now  be  briefly stated. Certain Bhumidari lands in these villages were the  property of  Nankoo s/o Mehar Singh and Sumitra widow of one  Ajudhia Singh.   On December 4, 1962, Nankoo sold his half share  to Kamla  Prasad  Singh and some others.  Kamla  Prasad’s  com- plaint  is  that Harinath Singh in conspiracy with  the  two Lekhpals got certain forged entries to be made in the Khasra after  the sale in favour of Kamla Prasad, and  applied  for the  correction of the Jamabandi.  The Ahlmad in  conspiracy with  Harinath  Singh  ante dated the  said  application  to November  9, 1962, to make it appear that it was made  prior to   the  sale-deed  and  to  shield  the   Lekhpals.    The application  was  entered in the register of  Jamaband’s  as Case  No.  116  dated November 9,  1962  although  the  case bearing  that  number  was one between  Bhagwati  Singh  and Bhagwati of Birbalpura Kaswal Raja. After the complaints were in Court, Harinath Singh filed  an application under s. 561-A of the Code of Criminal Procedure stating  that the offence, if any, was one under s.  193  of the  Indian Penal Code and the provisions of s. 195  of  the Code  of Criminal Procedure barred the  private  complaints. The High Court accepted the application for the above reason and quashing the proceedings against Hari Nath Singh ordered his  discharge.  In these appeals by certificate, the  order

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of the High Court is questioned. The  first question is what are the distinct features of  s. 193 and s. 218 of the Indian Penal Code.  Section 193 states the 830 punishment  for  giving  false evidence in any  stage  of  a judicial  peoceeding or fabricating false evidence  for  the purpose  of being used in any stage of judicial  proceeding. Section 191 defines the offence of giving false evidence and S.  192 the offence of fabricating false evidence.   We  may ignore s. 191 because here admittedly there is no giving  of false evidence as defined in the Penal Code.  The offence of fabricating  false  evidence  comes into  existence  when  a person causes any circumstances to exist or makes any  false entry in any book or record or makes any document containing a  false  statement intending that such  circumstance  false entry  or  false  statement  may appear  in  evidence  in  a judicial proceeding etc. and so appearing cause an erroneous opinion be formed touching a point material to the result of such proceeding.  The offence is a general one and does  not specify the person, or the kind of document.  It may be  any person  and  the  fabricated evidence may be  in  any  form. Section  218  on the other hand deals with  the  intentional preparation  of a false record by a public servant with  the object  of saving or injuring any Person or  property.   The difference between the two sect-tons is clearly  noticeable. Section  192  deals with judicial proceeding and  the  false evidence  is intended to be used in a  judicial  proceeding. Section 218 deals with public servants and there the gist is the intentional preparation of a false record with a view of saving  or injuring any person or property.  This  need  not have relation to a judicial proceeding as such. The  bar of s. 195 of the Code of Criminal  Procedure  which was  invoked by Hari Nath Singh arises thus.  No  Court  can take cognizance of an offence under s. 193 when 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  such Court.  In these cases, Hari Nath Singh is  charged with  abetment of three offences committed by  three  public servants  namely  the  two  Lekhpals  who  have  caused  the preparation  of an incorrect Khasra knowing it to be  likely that they would thereby cause loss or injury to Kamla Prasad Singh and the other vendees.  Hari Nath Singh is charged  in the third case with abetment of the act of the Ahlmad who is alleged  to have intentionally made a false entry about  the case  intending  that the false entry should be  used  in  a judicial  proceeding and wrong opinion be formed  about  the date of the institution of the proceeding.      It  will  appear  from this that  the  alleged  offence committed by   the Ahlmad was clearly in or in relation to a proceeding, in Court.   In fact he made an  incorrect  entry about  a case actually in Court with the intention that  the date of the institution of the proceeding may be taken to be November  9,  1962  although  the case  was  alleged  to  be instituted after December 4, 1962. 83 1 His offence (if any be proved against him) would fall within s.  192.   Section  192  deals  with  fabrication  of  false evidence to be used in a judicial proceeding so as to  cause an  erroneous  opinion  to be formed on  a  material  point. Section  192  therefore completely covers the  case  against Ahlmad,  and  must  cover the case of Hari  Nath  Singh  the alleged  abettor.   Section 218 Indian Penal Code  does  not apply in this case, because the record was not made with the object  of saving or injuring any person or  property.   The

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offence  of s. 192 Indian Penal Code is punishable under  s. 193  Indian Penal Code and the latter section is one of  the sections  mentioned  in  s.  195 (1 ) (b)  of  the  Code  of Criminal  Procedure, the gist of which has  been  reproduced above.   The decision of the High Court was therefore  right that  the  Court could not take cognizance  of  the  offence alleged  against  the Ahlmad and his  abettor,  because  the offence  was fabricating of false evidence in a  case  which was  in fact pending and the false entry was made  with  the object  that  an erroneous opinion be formed on  a  material point.   Such a case could only be instituted by a Court  in which or in relation to which this offence was committed and a private complaint was therefore incompetent. The  alleged offence against the Lekhpals and their  abettor Hari  Nath  Singh in the other two cases is of  a  different order.   The  offence of S. 218 Indian Penal Code is  not  a minor  offence,  included within s. 192.  It is  a  distinct offence which can be proceeded against without the bar of s. 195  of  the  Code of Criminal  Procedure.   There  is  some resemblance  between s. 192 and s. 21 8 Indian  Penal  Code, because  both deal with the preparation of a  false  record. There the resemblance ceases.  Whereas in s. 192, the record is  prepared  for  use in a  judicial  proceeding  with  the intention  that an erroneous opinion be formed  regarding  a material point, the offence in s. 218 is the preparation  of a  false  record by a public servant with the  intention  of saving  or injuring any person or property.   The  intention here was to save the property from the vendees namely  Kamla Prasad  Singh  and  others.  The offence  was  complete  the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in a judicial proceeding so as  to cause an erroneous opinion to be formed touching on a  point material to the result of such proceeding.  In the  Ahlmad’s case   this   latter  condition  was  the   most   important ingredient.  In the case of the Lekhpals, it was  immaterial whether   the  record  would  be  produced  in  a   judicial proceeding or not so as to cause an erroneous opinion to  be formed.   The  intention was to save the property  from  the effects of the sale and the preparation of the false  record was therefore sufficient from this point of view.  In  other words, the offence of the Lekhpals (if any be proved against them)  would  fall within s. 218 and not s. 192/193  of  the Indian  Penal Code.  It may fill in the latter  sections  if the entry 8 32 can be said to be in or in relation to a Court.  This cannot be  said  of the entries in the Khasra.  As s.  218  is  not named  in  s.  195 of the Code of  Criminal  Procedure,  the private complaint of Kamla Prasad Singh could be entertained by the Court and there was no bar. To  hold  that a record such as is contemplated  in  s.  218 Indian Penal Code is always one intended for use in a  Court would put S. 218 Indian Penal Code in S. 195 of the Code  of Criminal Procedure which the Code of Criminal Procedure  has not  thought of. Therefore s. 218 Indian Penal Code must  be treated as an independent and distinct offence.  There could be a private complaint in respect of an offence under S. 218 Indian Penal Code. The result is that the case against Hari Nath Singh of abet- ment  of the act of the Ahlmad could not begin except  on  a complaint  in writing of the Court concerned.  There was  no bar to the commencement of the case against Hari Nath  Singh and  the  two  Lekhpals on the private  complaint  of  Kamla Prasad  Singh.  Accordingly Criminal Appeal No. 244 of  1964

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shall  be dismissed.  Criminal Appeals Nos. 245-246 of  1964 shall be allowed and the concerned cases will be remitted to the Court of first instance for trial according to law. Y.P.                               Appeal No. 244 dismissed                              Appeals 245-246 allowed. 833