Is false implication fabrication of evidence : Delhi High Court 2008

REPORTED
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, 39/07, 56/07, 438/07 and 634/07
RESERVED ON: December 07, 2007
% DATE OF DECISION: February 15, 2008
(1) W.P.(Crl.) Nos.35/07
# SHYNI VARGHESE & ORS. ….Petitioners
! through: Mr. Harish Salve, Senior Advocate with
Mr. Ashish Jha and Ms. Meenakshi
Chatterjee, Advocates
VERSUS
$ STATE (GOVT. OF NCT OF DELHI) & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
(2) W.P.(Crl.) No.36/2007
# DR. PRASAD RAO & ANR. ….Petitioners
! through: Mr. Siddharth Luthra, Sr. Advocate with
Mr. Raian Karanjawala, Mr. Jai Singh
Brar, Mr. Dyanesh Sabnis and
Mr. Madhav Khurana, Advocates
VERSUS
$ STATE & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
(3) W.P.(Crl.) No.37/2007
# DR. ABHA GUPTA ….Petitioner
! through: Mr. S.K. Saxena, Advocate
VERSUS
$ STATE (GOVT. OF NCT OF DELHI) & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 1 of 49
39/07, 56/07, 438/07 and 634/07
(4) W.P.(Crl.) No.38/2007
# ANUPAM SIBAL ….Petitioner
! through: Mr. S.K. Saxena, Advocate
VERSUS
$ STATE (GOVT OF NCT OF DELHI) & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
(5) W.P.(Crl.) No.39/2007
# RAJI CHANDRU & ORS. ….Petitioners
! through: Mr. S.K. Saxena, Advocate
VERSUS
$ STATE (GOVT. OF NCT OF DELHI) & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
(6) W.P.(Crl.) No.56/2007
# SUDANSHU MITTAL ….Petitioner
! through: Mr. Harish Salve, Senior Advocate with
Mr. Ashish Jha and Ms. Meenakshi
Chatterjee, Advocates
VERSUS
$ STATE (GOVT. OF NCT OF DELHI) & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
(7) W.P.(Crl.) No.438/2007
# DHILNA JOHNA ….Petitioner
! through: Mr. Harish Salve, Senior Advocate with
Mr. Ashish Jha and Ms. Meenakshi
Chatterjee, Advocates
VERSUS
$ STATE (GOVT. OF NCT OF DELHI) & ANR. ….Respondents
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 2 of 49
39/07, 56/07, 438/07 and 634/07
(8) W.P.(Crl.) No.634/2007
# HARISH SHARMA ….Petitioner
! through: Mr. Ramesh Gupta with Mr. Bharat
Sharma, Advocates
VERSUS
$ STATE OF NCT OF DELHI ….Respondent
^ through: Ms. Mukta Gupta, Standing Counsel for
the State with Mr. Rajat Katyal and
Ms. Rajdipa Behura, Advocates.
CORAM:
* HON’BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J
1. The petitioners seek issuance of an appropriate writ/order/direction in
the nature of prohibition quashing the orders dated 8
th
June, 2006 and 4
th
November, 2006 passed by the learned ACMM, New Delhi in case FIR
No.305/2006, Police Station Sarita Vihar, New Delhi.
2. The facts leading to the filing of the present writ petition are as follows:
On 01.02.2006, FIR No.104/2006 was registered under Sections 19, 21A, 25,
27 and 29 NDPS Act against Rahul Mahajan and others by Police Station
Tughlaq Road, New Delhi. On 08.06.2006, an application was filed by the
SHO, Inspector Madanjit Singh, Police Station Tughlaq Road in the Court of
the learned ACMM for the registration of a case under Section 182 IPC against
the doctors and management of Apollo Hospital, wherein it was stated that
since the offence under Section 182 IPC was a non-cognizable offence and the
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 3 of 49
39/07, 56/07, 438/07 and 634/07
police cannot enter into investigation of such an offence suo moto, permission
for investigation of the case under Section 182 IPC may be given.
3. On the above application, Dr. Kamini Lau, ACMM, New Delhi passed
the following order:
“IN THE COURT OF DR. KAMINI LAU: ACMM:
NEW DELHI.
State Vs. Doctors & Management of Indraprastha Apollo
Hospital
8.6.06
Fresh complaint has been placed before me by SHO
Police Station, Tuglak Road. The same is directed to be
checked and registered.
Present: Insp. Madanjit Singh, SHO, PS Tuglak Road,
alongwith Ms. Suman Nalwa, ACP, PS Chankya Puri.
An application has been filed by SHO Police Station
Tuglak Road, Inspector Madanjit Singh the complainant
seeking appropriate orders from this court for the purpose of
registration of case u/s. 182 IPC against the Doctors and
Management of Indraprastha Apollo Hospital, New Delhi.
According to the complainant during the investigation in case
FIR No.104/06 dated 3.6.06 under Section 21/25/27/29 of
Narcotics Drugs and Psychotropic Substances Act read with
201/34 Indian Penal Code it was revealed that the doctors
and management of the Apollo Hospital has mislead the
investigating agency by fabricating and manipulating their
records with an intent to harbour and help accused involved
in the case to escape from law.
The complainant has submitted that information to the
local police had been delayed and there is tempering and
overwriting in the entries of admission in respect of time and
sequence of accused as observed from the casualty register of
the hospital. He has also submitted that the doctors and
management of the Apollo Hospital has deliberately given
false information regarding the toxicity suffered by accused
which has been done with an intent to mislead the
investigating agency so as to prevent the investigating officer
from taking recourse in law vis-a-vis the accused persons
involved in the case.
The complainant Insp. Madanjit Singh, has also
submitted that he apprehends that the relevant records i.e. the
Casualty Register, MLC Register and Pathological report of
the hospital may be further tampered due to which reasons he
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 4 of 49
39/07, 56/07, 438/07 and 634/07
also requests for directions to the Investigating Officer for
seizure of the above records.
I have gone through the investigation file and the copy
of the medico legal report of Rahul Mahajan. The said report
shows that at the time when he was admitted in the hospital
he was unconscious and gasping whereas during the shifting
his vitals have been found to be stable and conscious. I have
also gone through the forensic Science Laboratory Report
and the Discharge Summary. The complainant has pointed
out that the timings mentioned on the FSL report and on the
MLC/Discharge Summary are not matching with the Casualty
Register and the other relevant records maintained in the
hospital and he apprehends further tampering.
As per the Provision of Section 155 Code of Criminal
Procedure provides that …………..“when information is given
to an officer in charge of a police station of the commission
within the limits of such station of a non-cognizable offence,
he shall enter or cause to be entered the substance of the
information in a book to be kept by such officer in such form
as the State Government may prescribe in this behalf and
refer the information to the Magistrate. No Police Officer
shall investigate a non cognizable case without the order of a
Magistrate having power to try such case or commit the case
for trial. Any police officer receiving such order may
exercise the same powers in respect of the investigation
(except the power to arrest without warrant) as an officer in
charge of a police station may exercise in a cognizable case.
Where a case relates to two or more offences of which at least
one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are
non cognizable.
The underlying policy of the Legislature in making
certain offences non-cognizable is to ensure that persons are
not put to harassment of the investigations against them.
The object of Legislature is of caution against the
indiscriminate use of the police agency for ascertaining the
facts regarding which the Magistrate is bound to form his
own conclusions on the basis of material before him. In in
case on the basis of the information received, the Magistrate
is of the view that the information does not make out an
offence, then no order under Sub-Section 2 of Section 155 can
be passed.
The offence alleged is under Section 182 IPC is noncognizable
and no investigations can commence suo-moto
without a specific order from this court u/s 155 of the Code of
Criminal Procedure.
I have gone through the information placed before me
by the complainant Insp. Madanjit Singh are also the
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 5 of 49
39/07, 56/07, 438/07 and 634/07
material on the Investigation file of case FIR No.104/06 of
Police Station Tuglak Road. The allegations made by the
complainant prima facie disclose the commission of offence
and in order to ascertain if the same are correct or not,
investigations are required to be conducted. The copy of the
complaint of the SHO Police Station Tuglak Road is being
sent to the concerned SHO Police Station Sarita Vihar for
investigations.
In so far the request of the complainant for allowing
the search and seizure is concerned, I am of the view that the
same would be the prerogative of the Investigating Officer
who would be at liberty to proceed as per the procedure
prescribed under Chapter VII of the Code of Criminal
Procedure.
A copy of this order be sent to the SHO PS Sarita
Vihar alongwith the copy of the complaint and relevant
documents for necessary action under intimation to this
court.
sd/-
Announced in the open court (D.Kamini Lau)
8.6.06 ACMM: New Delhi”
4. Pursuant to the above order, a First Information Report bearing
No.305/2006 under Section 182 IPC was registered by the police of Police
Station Sarita Vihar and investigation commenced against the doctors and
management of the Apollo Hospital. On 30th October, 2006, a charge-sheet in
FIR No.305/2006 under Sections 182/201/109/114/120-B IPC, Police Station
Sarita Vihar was filed in the Court of the learned ACMM, New Delhi. The
said charge-sheet was accompanied by a copy of the FIR alongwith the
complaint submitted by the complainant on 8
th
June, 2006 and was also
accompanied by a formal complaint dated 30
th October, 2006 under Section
195 Cr.P.C. by the same complainant, i.e., Inspector Madanjit Singh of Police
Station Tughlaq Road.
5. On consideration of the charge-sheet, the complaint of Inspector
Madanjit Singh and the documentary evidence gathered in the course of
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 6 of 49
39/07, 56/07, 438/07 and 634/07
investigation, the ACMM passed the order dated 04.11.2006, taking
cognizance of the offences under Sections 182/201/109/114/120-B IPC and
also suo moto cognizance of the offences under Sections 177 and 193 IPC. The
order dated 4
th November, 2006, the quashing of which is sought in the present
writ petition, reads as follows:
“IN THE COURT OF SMT. KAMINI LAU, ACMM, PATIALA
HOUSE COURTS, NEW DELHI.
State vs. Harish Sharma etc.
FIR No.305/2006
P.S. Sarita Vihar
4.11.2006
Fresh charge sheet has been filed on 1.11.2006. It be
checked and registered as per rules.
Present: APP for the State alongwith I.O. Inspector Sushil
Chandra Sharma and Supervisory Officer ACP Dr. B.B.
Choudhary.
After having considered the material on record and
having heard the Investigating Officer, this Court is of the
opinion that not only the provisions which have been invoked
by the Investigating Officer i.e. under Section
182/201/109/114/120-B IPC but also the provisions under
Section 177 and 193 IPC should have been invoked since
there is sufficient material on record to show that all the
accused persons were under legal obligation to furnish
correct information with regard to the accused persons.
Further as per the material on record not only have the
accused conspired to destroy the evidence but they have tried
to fabricate false evidence for the purpose of being used in
the judicial proceedings.
Vide my separate detailed order dictated and
announced in the open Court I take cognizance for the
offence under Section 177/182/193/201/109/114/120-B IPC
as against all the accused persons including the accused kept
in column no.2 i.e. Harish Sharma and accused mentioned in
column no.4 i.e Mrs. Raji Chandru, Dr.Mukund Pandey, Dr.
Ali Mohmd. Ganani, Mohmd. Akram, Ms. Nisha Anna
Chacko, Ms. Shyni Verghese, Dr. Prasad Rao, Dr. Awdesh
Bansal, Dr. Abha Gupta, Ms. Dilna John, Ms. Sheerin Sara
Chacko, Dr. Anupam Sibal and Mr. Sidhanshu Mittal.
Issue summons against all the accused persons to the
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 7 of 49
39/07, 56/07, 438/07 and 634/07
Investigating Officer for 12.1.2007.
sd/-
ACMM
4.11.2006
IN THE COURT OF SMT. KAMINI LAU, ACMM, NEW
DELHI
State vs. Harish Sharma etc.
FIR No.305/2006
P.S. Sarita Vihar
ORDER
On the complaint of Inspector Madanjeet Singh, the
Investigating Officer Inspector Sushil Chandra Sharma has
filed the fresh charge sheet today against the 14 accused of
which the accused Harish Sharma has been kept in column
no.2 and accused Mrs. Raji Chandru, Dr.Mukund Pandey,
Dr. Ali Mohmd. Ganani, Mohmd. Akram, Ms. Nisha Anna
Chacko, Ms. Shyni Verghese, Dr. Prasad Rao, Dr. Awdesh
Bansal, Dr. Abha Gupta, Ms. Dilna John, Ms. Sheerin Sara
Chacko, Dr. Anupam Sibal and Mr. Sidhanshu Mittal who
had been kept in column no.4 for the offence under Section
182/201/109/114/120-B IPC.
I have gone through the material on record. It is a
settled proposition of law as laid down by the Hon’ble
Supreme Court in the case of M/s Swill Industries Ltd. vs.
State of Delhi reported in 2001 Crl. LJ 4173 and in the case
of Raghubans Dubey vs. State of Bihar reported in AIR 1967
SC 1167 that:
“It is the duty of the Magistrate to find out who
the offenders really are and once it comes to the
conclusion that apart from the persons sent up by
the police some other persons are involved, it is
his duty to proceed against these persons. The
summoning of the additional accused is part of the
proceeding initiated by his taking the cognizance
of an offence”.
In the present case the Investigating Officer has only
invoked the provisions of Section 182/201/109/114/120-B
IPC. As per the allegations, on the intervening night of
1.6.2006 and 2.6.2006 Rahul Mahajan and Bibek Moitra had
a champagne party and consumed alcohol. Later they had
taken drugs which they had procured with the help of one
Sahil Zaroo. They were seen lying in an unconscious state on
the sofa and froth was coming out of the mouth of Bibek
Moitra. Servant Ganesh Kumar Sinha brought the matter to
the notice of Harish Sharma who in turn directed Ganesh to
take both Bibek Moitra and Rahul Mahajan to Apollo
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 8 of 49
39/07, 56/07, 438/07 and 634/07
Hospital. At 2.39 A.M. on 2.6.2006 Harish Sharma
telephoned the accused no.1 mentioned at column no.2
directing Mrs. Raji Chandru, DGM, Apollo Hospital
narrating the incident and asked for legal favour in respect of
Bibek Moitra and Rahul Mahaja which fact is apparent from
the statement of accused Raji Chandru. Thereafter the
accused Harish Sharma telephoned Sidhanshu Mittal
regarding the incident and asked him to reach Apollo
Hospital as soon as possible and informed him that Mrs. Raji
Chandru had been told to extend all help. It was thereafter
that the accused had in turn spoke to accused no.2 Dr.
Mukund Pandey, CMO on duty and gave details of Rahul
Mahajan and Bibek Moitra and asked him to take extra care.
According to the statement of the drivers and the servants as
recorded by the Investigating Officer the accused no.3 and 4
were waiting at the out gate to receive the patients being
asked to do so by the accused no.1.
The accused no.2 had attended Rahul Mahajan in the
casualty cabin where he was brought by Ganesh and Anil
with alleged history of poisoning with alcohol mixed with
unknown substance in a conscious state and other
complication and shifted him to ICU. Meanwhile the accused
no.2 asked the servant to bring the substance which they had
consumed and the servant Ganesh Sinha brought two
polythene pouches containing white powder and handed over
to Dr. Mukund Pandey, accused no.3 through accused no.13
Sidhanshu Mittal which sample had been sealed and in turn
handed over to the police on their arrival. The accused no.3
had attended to Bibek Moitra in the casualty where he was
brought by Ganesh and Anil with alleged history of alcohol
ingestion and unknown poisoning. He was in a state of
unconsciousness and after about half an hour of initial
treatment for his survival, he was declared “brought dead” at
about 3.15 A.M. During this period the accused no.1 had
supervised the documentation of admission and treatment of
the two patients and she telephoned and sent SMSs to many
consultant doctors and official related to Apollo hospital.
She herself filled up the admission forms for both the patients
and got it signed by the accused no.13 at relatives column.
As directed by the accused no.1 the MLC was not prepared by
the casualty doctors i.e. accused no.2 and 3 at the first
instance and the police was not informed. All the entries
regarding admission of the patients were kept pending till
such time when Bibek Moitra was declared dead and it
became evident that the matter cannot be hushed up. The
details of the mobile phone shows that the accused Harish
Sharma and accused no.1 and 13 namely Raji Chandru and
Sidhanshu Mittal had been talking with each other and both
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 9 of 49
39/07, 56/07, 438/07 and 634/07
of them failed to inform the police at the earliest opportunity
despite the fact that there were under a legal obligation to do
so. The accused no.6 had made the first entry in admission
and discharge register in respect of Bibek Moitra and Rahul
Mahajan at 3.55 A.M. and 3.57 A.M. respectively though
Rahul Mahajan was brought into the casualty earlier that
Bibek Moitra. Instead of informing the PCR at the earliest it
was only at 4.20 A.M. that the Hassanain Raza was called out
and accused no.3 was asked to prepare information sheet to
be given to the police and he prepared the information sheet
and handed over the same to the Security Office at 4.35 A.M.
and instead of giving the information to the PCR at 100
number the telephone number of PS Tuglak Road was taken
and it was only at 5.00 A.M. that the entire episode was
informed to the police where it was recorded as DD No.34A
dated 2.6.2006. Hence a considerable delay was caused
deliberately in intimating the police.
Further perusal of the record reveals that later on 9.15
A.M. Rahul Mahajan had been visited by the accused no.7
and accused no.8 and though they found him trying to open
eyes and vitals for stable yet they advised for additional
medicines and pathological test which did not include urine
for toxicology screen. It was only at about 5.20 A.M. Dr. V.
Suri visited Rahul Mahajan and advised for urine toxic
screen for which sample was taken at 7.30 P.M. which fact is
apparent from the statement of the various witnesses. On
3.6.2006 at 9.30 A.M. the ventilators were removed from
Rahul Mahajan however he was kept on Bipap ventilation
and at about 3.00 P.M. the accused no.12 alongwith accused
no.7 gave a press briefing before the media stating therein
that the toxic screen of Rahul Mahajan was negative meaning
thereby that they had not found evidence of opiate or cocaine
consumption by Rahul Mahajan. The various documents
consisting of Rahul Mahajan’s treatment file, bills,
pathological reports, CFSL reports etc. revealed that the
cloths of Bibek Moitra gave positive test for the presence of
6-manoacetylmorphine, acetylcodein, codeine, cocaine and
caffine and the stomach wash of Bibek Moitra gave positive
test for the presence of Ethyl Alcohol, 6-manoacetylmorphine,
acetylcodeine, codeine and cocaine. Even the cloths of Rahul
Mahajan gave positive test for the presence of Ethyl Alcohol,
manoacetylmorphine, acetylcodeine and cocaine and the
white powder substance handed over by accused no.13 to the
casualty doctor tested and opined as heroine and cocaine.
The various entries made in the registers are allegedly
showing different time rather than the right time of admission
and all the entries were reported to be stopped till such time
Bibek Moitra was not declared dead which fact is evident
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 10 of 49
39/07, 56/07, 438/07 and 634/07
from the fact that in between another patient Rakesh
Malhotra had also come to the hospital for casualty treatment
and his entry time has been wrongly mentioned and later on
cut and over written. The entries also do not match with the
actual sequence of arrival of the patient. There are separate
interpolation in the MLC. As per the MLC No.236/2006 the
police had been informed at 4.00 A.M. which fact is incorrect
since as per the record under version of Dr. Hussnain Raza
the information to the police was prepared at 4.35 A.M.
which was handed over to the Security Officer who had
informed that PS Tuglak Road only at 5.00 A.M. which fact is
apparent from the DD of PS Tuglak Road. It is also alleged
that the treatment file has been manipulated.
Under these circumstances it was necessary for the
Investigating Officer to invoke the provisions of Section 177
and also Section 193 of IPC which has not been done. The
Investigating Officer Sushil Chandra Sharma and the
Supervisory Officer ACP Dr. B.B. Choudhary who are
present in the Court have requested the Court to invoke the
said provisions. Though in my considered opinion since the
alleged violation i.e. fabricating the false evidence for the
purpose of being used in any stage of judicial proceeding
does not require sanction under Section 195 Cr.P.C. not
being covered under Clause B of Section 195 IPC yet the
Investigating Officer submits that in case if the same is
required at any stage he would file the same after obtaining it
from the competent authority.
Hence in my view the aforesaid material on record, I
take cognizance of the offence under Section
177/182/193/201/109/114/120-B IPC as against the accused
persons including HarishSharma who has been wrongly kept
in column no.2 since there is material on record to show a
prior meeting of minds between Harish Sharma, Mrs. Raji
Chandru and Sidhanshu Mittal. Issue summons against
Harish Sharma, Mrs. Raji Chandru, Dr.Mukund Pandey, Dr.
Ali Mohmd. Ganani, Mohmd. Akram, Ms. Nisha Anna
Chacko, Ms. Shyni Verghese, Dr. Prasad Rao, Dr. Awdesh
Bansal, Dr. Abha Gupta, Ms. Dilna John, Ms. Sheerin Sara
Chacko, Dr. Anupam Sibal and Mr. Sidhanshu Mittal. Issue
summons to all the accused persons through the Investigating
Officer for 12.1.2007.
Announced in the open Court.
Dated 4.11.2006
sd/-
(DR. KAMINI LAU)
ACMM, NEW DELHI”
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 11 of 49
39/07, 56/07, 438/07 and 634/07
5. Mr.Harish Salve, the learned senior counsel for the petitioners in Writ
Petition (Crl.) Nos.35/06, 37/06, 38/06 and 39/06 contended that the
proceedings initiated against the petitioners are ex facie without jurisdiction
since the said proceedings do not emanate from a complaint filed by the
concerned police officer. Section 195 (1) (a) of the Code of Criminal
Procedure mandates that cognizance of an offence under Section 177 to 188
IPC can only be taken upon filing a complaint by the concerned public servant,
and expressly bars any Court from taking cognizance of an offence under
Sections 177 to 188 of the Penal Code except on a complaint in writing made
by a public servant. In the present case, he contended that, though it is
submitted by the prosecution that the complaint dated 30th October, 2006 was
filed by the concerned public servant along with the charge-sheet, the
proceedings have not emanated from the purported complaint filed, but have
emanated out of a Report filed under Section 173 Cr.P.C, made in an
investigation pursuant to the order under Section 156(3) Cr.P.C.
6. In the above context, Mr.Salve submitted that the admitted facts amply
demonstrate that the entire procedure from root to fruit, i.e., from filing of the
application under Section 155 to the taking of cognizance of the “chargesheet”,
is patently illegal and vitiates the proceedings. According to him, the
allegations of falsification of the records relate to investigation into the
offences under the NDPS Act by Rahul Mahajan and others (accused in FIR
No.104/2006), which case was investigated by the S.H.O., Police Station
Tughlak Road, New Delhi. Thus, Section 195 would bar cognizance being
taken except upon a complaint filed by the SHO, Tughlak Road, who is the
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 12 of 49
39/07, 56/07, 438/07 and 634/07
concerned public servant in the present case. Instead of filing a complaint, the
SHO, Tughlak Road, Inspector Madanjit Singh (the concerned public servant)
filed an application before the Additional Chief Metropolitan Magistrate for
permission to investigate a non-cognizable offence under Section 155 (2) of the
Cr.P.C. This clearly shows that the public servant had no knowledge of the
commission of an offence on which the complaint could have been filed by him
– he was seeking orders from the Court for the investigation of a noncognizable
offence. The Addl. Chief Metropolitan Magistrate, treating the
application as being under Section 155(2) Cr.P.C., directed another Officer,
i.e., the S.H.O., Police Station Sarita Vihar to conduct the investigation. The
SHO, Sarita Vihar registered the present FIR (FIR No.305/06) and after
investigating the matter filed a “charge-sheet”. This shows that the impugned
order of the learned ACMM purports to take cognizance not on the basis of any
complaint, but on the basis of this “charge-sheet”. The said “charge-sheet” filed
by the SHO, Sarita Vihar cannot be treated as a complaint within the meaning
of Section 195 (1) (a) of the Cr.P.C., it not being a complaint by the public
servant concerned.
7. According to Mr. Salve, the matter does not end here. The complaint by
the concerned public servant said to be attached with the “charge-sheet” has
not even been referred to by the ACMM, leave alone taken cognizance of by
the ACMM. The ACMM has referred to the “charge-sheet” filed by the SHO,
Police Station Sarita Vihar only and thereafter has taken cognizance of the
same. In other words, proceedings have not been initiated on the complaint of a
public servant, but on the charge-sheet filed by the second Investigating
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 13 of 49
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Officer. This runs counter to the scheme of Section 195 (1) (a) of the Cr.P.C.
The subsequent formality of filing a complaint as an annexure to the chargesheet,
Mr. Salve contended, cannot result in the curing of this defect. This view
was taken by the Hon’ ble Supreme Court in the case of Daulat Ram Vs. State
of Punjab 1962 (Supp.) (2) SCR 812.
8. In the above context, reference was made by the learned senior counsel
for the petitioners to the distinction laid down in the Code of Criminal
Procedure between a “complaint” [defined in Section 2(d)] and “police report”
[defined in Section 2(r)]. It is urged by him that a perusal of the said definitions
would reveal that the term “complaint” as defined under Section 2(d) excludes
the term “police report”. Section 2(d) and 2(r) read as follows:
“2(d). “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action under
this Code, that some person, whether known or unknown, ha
committed an offence, but does not include a police report.
2(r) “police report” means a report forwarded by a police
officer to a Magistrate under sub-section (2) of section 173.”
9. The first limb of Mr.Salve’s contention with regard to the absence of a
complaint thus hinges on the provisions of Section 195 (1) (a) which read as
under:
“195. 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
(ii) of any abetment of, attempt to commit, such
offence,
(iii) of any criminal conspiracy to commit, such offence,
except on the complaint in writing of the public servant
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 14 of 49
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concerned or of some other public servant to whom he is
administratively subordinate;” (emphasis supplied)
10. The second limb of Mr.Salve’s argument is that the proceedings are also
contrary to the provisions of Section 195 (1) (b), inter alia, for the reason that
the complaint is not only in relation to Section 182 of the IPC, but also in
relation to Section 193 of the IPC, in which case the complaint should have
been filed by the learned ACMM trying the Rahul Mahajan case (FIR
No.104/2006). The provisions of Section 195 (1) (b) Cr.P.C. which are
apposite are as under:
“195. 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)………………………………………………………………………………….
(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 (ii),
except on the complaint in writing of that Court, or of some
other Court to which that Court is subordinate.” (emphasis
supplied)
Section 193 of the Indian Penal Code reads as follows:
“193. Punishment for a false evidence.– Whoever
intentionally gives false evidence in any stage of a judicial
proceeding, or fabricates false evidence for the purpose of
being used in any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term
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which may extend to seven years, and shall also be liable to
fine,
and whoever intentionally gives or fabricates false
evidence in any other case, shall be punished with
imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.
Explanation 1.– A trial before a Court-martial; is a judicial
proceeding.
Explanation 2.– An investigation directed by law
preliminary to a proceeding before a Court of Justice, is a
stage of a judicial proceeding, though that investigation may
not take place before a Court of Justice.” (emphasis
supplied)
11. It is submitted by Mr. Salve that Explanation (2) to Section 193 IPC is
couched in wide language to provide that “an investigation directed by law
preliminary to a proceedings before a Court of Justice, is a stage of judicial
proceeding, though that investigation may not take place before a Court of
Justice”. Mr.Salve contends that the language of Explanation (2) does not
limit the coverage provided by the said Explanation to offences in Chapter XI
of the Penal Code, but is couched in general language, and in the absence of
words of limitation in the said Explanation, its language must be given full
effect. Elaborating upon this contention, Mr.Salve urges that the scheme of the
Code of Criminal Procedure is that all investigations into offences – whether
cognizable or non-cognizable – are under the control of the Court, and once an
investigation is commenced, it must necessarily result in a report being filed
under Section 173 Cr.P.C. Thus, all investigations under Section 173 Cr.P.C.
are ex-hypotheses “preliminary to a proceeding before a Court of Justice….”.
It must then follow that for the purpose of offences (whether under Chapter X
or under Chapter XI) committed in the course of criminal investigation under
the Cr.P.C., the offences would be deemed to be committed in the course of a
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judicial proceeding, and consequently a complaint would only be competent by
the concerned Magistrate (or Court of Justice) before whom the criminal
proceedings are finally taken up as judicial proceedings.
12. In the alternative, Mr.Salve submits that in any event Section 195 (1) (b)
bars cognizance of an offence under Section 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 that Court. In the present case, at the time of
cognizance of the offence under Section 193 IPC, the charge-sheet had already
been filed and cognizance taken by the Court in FIR No.104/2006 (the Rahul
Mahajan case). The allegations in the “charge-sheet” filed in case FIR
No.305/2006 are of offences allegedly committed in the course of investigation
of offences under trial in that case, i.e., in case FIR No.104 of 2006. Therefore,
cognizance could have been taken by the Court only if the complaint was filed
by the concerned Judicial Officer and not by the Police Officer. It is also
submitted that the learned Magistrate proceeded on the assumption that the
absence of sanction is a procedural defect, which can be cured at a later stage.
This assumption, it is submitted, is completely erroneous as the noncompliance
of the mandatory provisions of Section 195 (1) (b) strikes at the
root of the jurisdiction of the Court [M.L.Sethi Vs. R.P.Kapoor (1967) 1 SCR
520].
13. The third limb of Mr.Salve’s submission is that mis-carriage of justice
has resulted from breach of the provisions of Section 340 Cr.P.C., which lays
down the procedure for proceeding in a case affecting the administration of
justice and prescribes that where the court making the complaint is of the
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opinion that it is expedient in the interest of justice that an inquiry should be
made into my offence referred to in clause (b) of Sub-Section (1) of Section
195, such Court shall record a finding to that effect [Section 340 (1) (a)]. This
is, it is submitted, a vital safeguard in favour of all those who are witnesses in a
criminal investigation and insulates them from any pressure that may be
brought to bear upon them by the officers investigating the offences. Thus, it is
only when the Court before whom a judicial proceeding is pending is satisfied
that the facts on record show that an offence has been committed by some
persons under Chapter X or Chapter XI of the Code, that the Court would
record a prima facie finding to that effect and then make a complaint thereof in
writing. No such exercise having been undertaken in the present case and the
provisions of Section 340 Cr.P.C. having been given a complete go-by, the
necessary safeguards provided by the Court to the witnesses of the offence
have been removed and this has resulted in the witnesses, who are in the instant
case doctors and nurses, being placed in the dock.
14. Relying upon the decision of the Hon’ble Supreme Court in T.T. Antony
vs. State of Kerala AIR 2001 SC 2637 = (2001) 6 SCC 181, the fourth limb of
Mr.Salve’s assault on the prosecution case is that the filing of the second FIR
with regard to the same incident is impermissible in law. He contends that the
allegations against the petitioners leave no manner of doubt that the second
FIR, being FIR No.305/06, is an adjunct to the first FIR filed against Rahul
Mahajan, i.e., FIR 104/06. He submitted that the FIR recorded against Rahul
Mahajan and others relates to the offences under the NDPS Act, but in the
present case the offences allegedly committed are those under Chapter X and
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Chapter XI of the Penal Code, with a view to shield the detection of the
offences committed by Rahul Mahajan and his co-accused. Thus, on their very
face, the two FIRs are adjuncts to each other and arise out of the same set of
events. The recording of two FIRs in a matter which is intrinsically one, it is
submitted, has caused serious prejudice to the petitioners. Arguably, the court
trying the case against Rahul Mahajan (FIR 104/06) may have viewed the
alleged offences committed by the accused in the present case, who are
witnesses in Rahul Mahajan’s case, very differently. It is also highlighted that
in the Rahul Mahajan case, there is not a single allegation, leave alone an
averment in relation to tampering with the evidence qua the petitioners, hence
the present prosecution is nothing but a sheer abuse of the process of the court.
15. Fifthly, it is contended by Mr.Salve that in arriving at the conclusion
that the offences under Chapter X and Chapter XI have been committed, the
court failed to keep in perspective the standards prescribed by the Hon’ble
Supreme Court in the case of Jacob Mathew Vs. State of Punjab and Anr.
(2005) 6 SCC 1. A reading of the status report submitted by the State, he
pointed out, shows that if the Mathew standards are applied, the Magistrate
seriously erred in issuing process on the charge-sheet filed against the
petitioners. He submitted that the decision whether to give or not to give a
certain drug to a patient is a professional decision taken by the qualified
medical expert, and if any doubt is raised against the said decision, or any
motive attributed or any offence alleged, there needs to be cogent evidence of
an independent medical expert to justify the fact that the professional decision
taken by the qualified medical expert was not as per the established medical
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procedure. This view was held by the Hon’ble Supreme Court in the case of
Dr.Suresh Gupta Vs. Govt. of NCT of Delhi 2004 (6) SCC 422 and again
reiterated in the Mathew case. In the Mathew case, the Hon’ble Supreme Court
ruled:
“Statutory rules or executive instructions incorporating
certain guidelines need to be framed and issued by the
Government of India and/or the State Governments in
consultation with the Medical Council of India. So long as it
is not done, we propose to lay down certain guidelines for the
future which should govern the prosecution of doctors for
offences of which criminal rashness or criminal negligence is
an ingredient. A private complaint may not be entertained
unless the complainant has produced prima facie evidence
before the court in the form of a credible opinion given by
another competent doctor to support the charge of rashness
or negligence on the part of the accused doctor. The
investigating officer should, before proceeding against the
doctor accused of rash or negligent act or omission, obtain
an independent and competent medical opinion preferably
from a doctor in government service, qualified in that branch
of medical practice who can normally be expected to give an
impartial and unbiased opinion applying the Bolam test of
the facts collected in the investigation. A doctor accused of
rashness or negligence, may not be arrested in a routine
manner (simply because a charge has been levelled against
him). Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the
investigating officer feels satisfied that the doctor proceeded
against would not make himself available to face the
prosecution unless arrested, the arrest may be withheld.”
16. It is submitted by Mr. Salve that the present petitioners are essentially
being prosecuted for decisions taken by them in the course of treatment
rendered by them to a patient, who was critical when he arrived at the hospital.
Learned senior counsel also submitted that the present petitioners were not
even on the spot when the drug (Fentanyl) was administered, as recorded in the
Nurses’ note sheet, at 3 A.M., and that the present petitioners came on the spot
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much later, at 4:30 A.M. Then again, there is neither any evidence, nor any
material to even prima facie show the existence of a conspiracy between the
present petitioners and the accused in the Rahul Mahajan case.
17. On merits, it is submitted by Mr.Harish Salve, the learned senior counsel
that a bare perusal of the complaint dated 8
th
June, 2006 and the charge-sheet
dated 30th October, 2006 reveals that there is nothing on record to warrant the
prosecution of the petitioners for the offences under Sections
177/182/193/201/109/114/120-B IPC. The petitioners have not caused
disappearance of any evidence, nor they have given false information to the
Investigating Officer in case FIR No.104/2006, nor they have made any false
entry or given any false statement in a judicial proceeding or in a proceeding
taken by law. The petitioners are also sought to be prosecuted under Section
120-B IPC, but the Investigating Agency has failed to place on record any
material or cite any instance from which it can even prima facie be inferred
that the petitioners had conspired with other co-accused or any of the accused
persons named in the charge-sheet in FIR No.104/2006, under Sections
21/25/27/27A/29 NDPS Act read with Section 204/34 IPC, Police Station
Tughlak Road at any point of time. The entire prosecution case against the
petitioners, it is contended, is based on the opinion of the Investigating Officer,
who is neither a skilled medical practitioner nor possesses the requisite
knowledge to opine on the exercise of professional skill and knowledge by the
petitioners in relation to the medicines administered to the patient.
18. Mr. S.K. Saxena, learned counsel for the petitioner in W.P.(Crl.)
Nos.37/2007, 38/2007 and 39/2007 and Mr. Ramesh Gupta, learned counsel for
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 21 of 49
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the petitioner in W.P.(Crl.) No.634/2007 adopted the arguments of Mr. Harish
Salve, Senior Advocate and relied upon the same.
19. Mr. Siddharth Luthra, the learned senior counsel on behalf of the
petitioners in W.P.(Crl.) No.36/2007, while adopting the arguments of
Mr.Harish Salve, made the following additional submissions:
20. According to him, viewed from any angle, the procedure followed in the
present case was wholly unjustified and was not in accordance with the law.
Relying upon the Privy Council judgment in Nazir Ahmad Vs. King-Emperor
reported in AIR 1936 Privy Council 253 and the well recognized doctrine that
where a power is given to do a certain thing in a certain way, the thing must be
done in that way or not at all and other methods of performance are necessarily
forbidden, Mr. Luthra contended that unmindful of the bar of Section 195 (1)
(a) of the Cr.P.C, the learned A.C.M.M issued directions under Section 155
(2)and took cognizance of the alleged offences at the first instance by her order
dated 8
th
June, 2006.
21. Mr. Luthra stressed that it is well settled that the procedure to be
followed pre-cognizance and post-cognizance under Section 190 (1) (a) is
distinct from the procedure to be followed under Section 190 (1) (b). In the
present case, the prosecution having filed the complaint before the learned
ACMM, New Delhi on 8
th
June, 2006, on which the learned ACMM took
cognizance, thereafter the learned ACMM was bound to follow the procedure
laid down in Chapter XV of the Cr.P.C. as set out in Sections 200 – 203, i.e.,
to record pre-summoning evidence. The learned ACMM at the most could have
carried out an inquiry herself or directed a limited investigation to be conducted
W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 22 of 49
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by a police officer under Section 202 Cr.P.C. only. The scope of the inquiry
under Section 202 Cr.P.C., it is well settled, is different and distinct from the
scope of the inquiry under Section 155/156 Cr.P.C. He contended that by no
stretch of imagination the police report filed pursuant to an inquiry under
Section 202 Cr.P.C. can be said to be a charge sheet for the purpose of
cognizance. The so-called chargesheet was thus only a report/information
pursuant to an inquiry under Section 202 Cr.P.C. and not a chargesheet within
the meaning of Section 2 (r) of the Code.
22. In any event, no second cognizance could have been taken on the basis
of the final report/chargesheet under Section 173 Cr.P.C. (even if it be treated
as a complaint). The principle of law being that cognizance can be taken only
once and not time and again, the learned ACMM erred by taking cognizance
again on the basis of the charge sheet filed by the prosecution in the present
case. Article 21 of the Constitution provides that a person cannot be proceeded
against or tried except as per the procedure established by the law. The learned
A.C.M.M having failed to adhere to the relevant provisions of the Cr.P.C. and
chosen instead to act on the mere ipse dixit of the Investigating Officer, grave
prejudice has been caused to the petitioners in the instant case.
23. Buttressing the contentions of Mr.Salve, Mr.Luthra vehemently
contended that in the light of the judgment of the Hon’ble Supreme Court in the
Jacob Mathew case (supra), the learned ACMM seriously erred in issuing
process on the chargesheet filed in FIR No.305/2006, Police Station Sarita
Vihar. He emphasized that a doctor or a medical practitioner is under a duty to
treat his patients and any action taken by him in the course of his treatment, i.e.,
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a decision whether or not to administer a certain drug or to give a certain
course of treatment or not, is a professional decision taken by the doctor and
for attributing motive to him, there needs to be a cogent body of evidence of
independent medical experts to justify the fact that the decision taken by him
was not as per the established medical practice.
24. Countering the aforesaid contentions raised on behalf of the petitioners,
Ms.Mukta Gupta, Standing Counsel for the State in the first instance argued
that assuming the allegations of the petitioners to be correct, the orders dated
8
th
June, 2006 and 4
th November, 2006 of the learned ACMM were not liable to
be quashed, since the settled law is that any illegality committed in the course
of investigation does not affect the competence or the jurisdiction of the court
of trial, unless miscarriage of justice is shown to have been occasioned thereby.
Reliance was placed by her, in this context, upon the following decisions of the
Hon’ble Supreme Court.
25. The first is a three-Judge Bench decision of the Supreme Court in H.N.
Rishibud and Inder Singh Vs. The State of Delhi, 1955 SCR 1150. In the said
case, the provisions of Section 5(4) and the proviso to Section 3 of the
Prevention of Corruption Act, 1947 (II of 1947) and the corresponding Section
5-A of Prevention of Corruption Act (Second Amendment) Act, 1952 (LIX of
1952) provided that the investigation into the offences specified therein was
not to be conducted by any police officer of a rank lower than the Deputy
Superintendent of Police without the specific order of a Magistrate, and the
question arose as to whether trial following upon the investigation in
contravention of these provisions was illegal. Holding the aforesaid provisions
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to be mandatory and not directory and any investigation conducted in violation
thereof to be illegal, the Hon’ble Supreme Court nevertheless observed as
follows: [SCR, page 1162]
“The question then requires to be considered whether and to
what extent the trial which follows such investigation is
vitiated. Now, trial follows cognizance and cognizance is
preceded by investigation. This is undoubtedly the basic
scheme of the Code in respect of cognizable cases. But it does
not necessarily follow that an invalid investigation nullifies
the cognizance or trial based thereon. Here we are not
concerned with the effect of the breach of a mandatory
provision regulating the competence or procedure of the
Court as regards cognizance or trial. It is only with reference
to such a breach that the question as to whether it constitutes
an illegality vitiating the proceedings or a mere irregularity
arises. A defect or illegality in investigation, however
serious, has no direct bearing on the competence or the
procedure relating to cognizance or trial. No doubt a police
report which results from an investigation is provided in
section 190 of the Code of Criminal Procedure as the material
on which cognizance is taken. But it cannot be maintained
that a valid and legal police report is the foundation of the
jurisdiction of the Court to take cognizance. Section 190 of
the Code of Criminal Procedure is one out of a group of
sections under the heading “Conditions requisite for initiation
of proceedings”. The language of this section is in marked
contrast with that of the other sections of the group under the
same heading, i.e. Sections 193 and 195 to 199. These latter
sections regulate the competence of the Court and bar its
jurisdiction in certain cases excepting in compliance
therewith. But section 190 does not. While no doubt, in one
sense, clauses (a), (b) and (c) of section 190(1) are conditions
requisite for taking of cognizance, it is not possible to say that
cognizance on an invalid police report is prohibited and is
therefore a nullity. Such an invalid report may still fall either
under clause (a) or (b) of section 190(1), (whether it is the one
or the other we need not pause to consider) and in any case
cognizance so taken is only in the nature of error in a
proceeding antecedent to the trial. To such a situation section
537 of the Code of Criminal Procedure which is in the
following terms is attracted:
“Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered on appeal or
revision on account of any error, omission or irregularity in
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the complaint, summons, warrant, charge, proclamation,
order, judgment or other proceedings before or during trial
or in any enquiry or other proceedings under this Code,
unless such error, omission or irregularity, has in fact
occasioned a failure of justice”.
If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the
investigation can be shown to have brought about a miscarriage
of justice. That an illegality committed in the course of
investigation does not affect the competence and the jurisdiction
of the Court for trial is well settled as appears from the cases in
Prabhu v. Emperor (AIR 1944 P.C. 73) and Lumbhardar Zutshi
v. the King (AIR 1950 P.C. 26).”
26. Reiterating the same principle, another three-Judge Bench of the
Hon’ble Supreme Court in the case of State of Andhra Pradesh Vs. P.V.
Narayana, 1971 (1) SCC 483, in paras 5 to 7, after noticing its earlier decision
in the H.N.Rishi Bud and Inder Singh case (supra), and another decision
rendered by it in Dr.M.C.Sulkunte Vs. State of Mysore 1973 SCC 513, held
that it is clear from these authorities that an illegal investigation does not vitiate
the trial and that the High Court had erred in quashing the proceedings against
the respondents solely on the ground of illegal investigation. In order to set
aside the conviction, the High Court should have also gone into the question
whether the illegal investigation had resulted in prejudice to the accused and
whether there had been miscarriage of justice as a result of bad and irregular
investigation.
27. A Constitution Bench of the Hon’ble Supreme Court in the case of
Pooran Mal Vs. Director of Inspection (Investigation) of Income Tax, New
Delhi and others, reported in AIR 1974 SC 348, while declining to issue a writ
of prohibition in restraint of the use of material gathered during search and
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seizure by the Income Tax Authorities in contravention of the provisions of
Section 132 of the Income Tax Act, 1961, held that the Courts have
consistently refused to exclude the relevant evidence merely on the ground that
it was obtained by illegal search or seizure. The following observations made
by the Hon’ble Supreme Court are apposite:-
“24. ……………………………. Now, if the Evidence Act 1872
which is a law consolidating, defining and amending the law of
evidence no provision of which is challenged as violating the
Constitution – permits relevancy as the only test of admissibility
of evidence (See Section 5 of the Act) and, secondly, that Act or
any other similar law in force does not exclude relevant evidence
on the ground that it was obtained under an illegal search or
seizure, it will be wrong to invoke the supposed spirit of our
Constitution for excluding such evidence. Nor is it open to us to
strain the language of the Constitution, because some American
Judges of the American Supreme Court have spelt out certain
constitutional protections from the provisions of the American
Constitution. In 1954 SCR 1077 = (AIR 1954 SC 300), already
referred to a search and seizure made under the Criminal
Procedure Code was challenged as illegal on the ground of
violation of the fundamental right under Article 20 (3), the
argument being that the evidence was no better than illegally
compelled evidence. In support of that contention reference was
made to the Fourth and Fifth amendments of the American
Constitution and also to some American cases which seemed to
hold that the obtaining of incriminating evidence by illegal
seizure and search tantamounts to the violation of the Fifth
amendment……………………..”
“A power of search and seizure is in any system of
jurisprudence an overriding power of the State for the protection
of social security and that power is necessarily regulated by law.
When the Constitution makers have thought fit not to subject
such regulation to constitutional limitations by recognition of a
fundamental right to privacy analogous to the American Fourth
Amendment we have no justification to import it into a totally
different fundamental right by some process of strained
construction. Nor is it legitimate to assume that the
constitutional protection under Art. 20(3) would be defeated by
the statutory provisions for searches.
It, therefore, follows that neither by invoking the spirit of
our Constitution nor by a strained construction of any of the
fundamental rights can we spell out the exclusion of evidence
obtained on an illegal search.”
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25. So far as India is concerned its law of evidence is
modelled on the rules of evidence which prevailed in English
law, and courts in India and in England have consistently
refused to exclude relevant evidence merely on the ground that it
is obtained by illegal search or
seizure………………………………………………”
28. Next reliance was placed by Ms. Gupta on the case of State of Madhya
Pradesh Vs. Ramesh C.Sharma, (2005) 12 SCC 628, wherein dealing with
the case of investigation by an incompetent police officer and the prayer for
quashing of investigation and charge solely on that ground, the Hon’ble
Supreme Court in para-5 held as follows:
“5. Learned counsel for the State contended that the impugned
order of the High Court is contrary to the settled principle of
law enunciated by this Court in a catena of decisions and it is
liable to be set aside. Avoiding multiplicity, we may refer to a
decision of this Court rendered in the case of State of M.P. v.
Ram Singh (2000) 5 SCC 88. This Court in Ram Singh after
noticing the various decisions of this Court, inter alia, held that
a defect or illegality in the investigation, however serious, has
no direct bearing on the competence or the procedure relating
to cognizance or trial. In a recent decision in the case of Union
of India v. Prakash P. Hinduja (2003) 6 SCC 195 in which one
of us (G.P. Mathur, J.) is the author of the judgment after
noticing the various decisions of this Court pointed out in paras
20 and 21 of the judgment as under: (SCC pp. 209-10)
“20 . Thus the legal position is absolutely clear and
also settled by judicial authorities that the court would
not interfere with the investigation or during the
course of investigation which would mean from the
time of the lodging of the first information report till
the submission of the report by the officer in charge of
the police station in court under Section 173(2) CrPC,
this field being exclusively reserved for the
investigating agency.
21 . An incidental question as to what will be the result
of any error or illegality in investigation on trial of the
accused before the court may also be examined.
Section 5-A of the Prevention of Corruption Act, 1947
provided that no police officer below the rank of a
Deputy Superintendent of Police shall investigate any
offence punishable under Section 161, Section 165 and
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Section 165-A IPC or under Section 5 of the said Act
without the order of a Magistrate of the First Class. In
H.N. Rishbud (1955) 1 SCR 1150 the investigation was
entirely completed by an officer of the rank lower than
the Deputy Superintendent of Police and after
permission was accorded a little or no further
investigation was made. The Special Judge quashed
the proceedings on the ground that the investigation
on the basis of which the accused were being
prosecuted was in contravention of the provisions of
the Act, but the said order was set aside by the High
Court. The appeal preferred by the accused to this
Court assailing the judgment of the High Court was
dismissed and the following principle was laid down:
(AIR pp.203-04, para 9)
‘9 . The question then requires to be considered
whether and to what extent the trial which
follows such investigation is vitiated. Now, trial
follows cognizance and cognizance is preceded
by investigation. This is undoubtedly the basic
scheme of the Code in respect of cognizable
cases. But it does not necessarily follow that an
invalid investigation nullifies the cognizance or
trial based thereon. Here we are not concerned
with the effect of the breach of a mandatory
provision regulating the competence or
procedure of the court as regards cognizance or
trial. It is only with reference to such a breach
that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere
irregularity arises.
A defect or illegality in investigation, however
serious, has no direct bearing on the competence
or the procedure relating to cognizance or trial.
No doubt a police report which results from an
investigation is provided in Section 190 of the
Code of Criminal Procedure as the material on
which cognizance is taken. But it cannot be
maintained that a valid and legal police report is
the foundation of the jurisdiction of the court to
take cognizance. Section 190 of the Code of
Criminal Procedure is one out of a group of
sections under the heading ‘Conditions requisite
for initiation of proceedings’. The language of
this section is in marked contrast with that of the
other sections of the group under the same
heading i.e. Sections 193 and 195 to 199.
These latter sections regulate the competence of
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the court and bar its jurisdiction in certain cases
excepting in compliance therewith. But Section
190 does not. While no doubt, in one sense,
clauses (a), (b) and (c) of Section 190(1) are
conditions requisite for taking of cognizance, it is
not possible to say that cognizance on an invalid
police report is prohibited and is therefore a
nullity. Such an invalid report may still fall either
under clause (a) or (b) of Section 190(1).
(Whether it is the one or the other we need not
pause to consider) and in any case cognizance so
taken is only in the nature of error in a
proceeding antecedent to the trial.’
The Court after referring to Parbhu v. Emperor and
Lumbhardar Zutshi v. R. held that if cognizance is in fact
taken on a police report initiated by the breach of a
mandatory provision relating to investigation, there can be
no doubt that the result of the trial, which follows it cannot
be set aside unless the illegality in the investigation can be
shown to have brought about a miscarriage of justice and
that an illegality committed in the course of investigation
does not affect the competence and the jurisdiction of the
court for trial. This being the legal position, even assuming
for the sake of argument that CBI committed an error or
irregularity in submitting the charge-sheet without the
approval of CVC, the cognizance taken by the learned
Special Judge on the basis of such a charge-sheet could
not be set aside nor could further proceedings in
pursuance thereof be quashed. The High Court has clearly
erred in setting aside the order of the learned Special
Judge taking cognizance of the offence and in quashing
further proceedings of the case.”
29. In State (NCT of Delhi) Vs. Navjot Sandhu @ Afzal Guru, 2005 (11)
SCC 600 at page 717, while discussing the admissibility of illegally obtained
evidence, the Apex Court held that the question was no longer res integra.
Referring to its earlier decision in R.M. Malkani vs. State of Maharashtra
(1973) 1 SCC 471, the Court approved of the law laid down in the said case as
follows: (SCC p.477, para 24)
“There is warrant for the proposition that even if evidence is
illegally obtained it is admissible. Over a century ago it was
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said in an English case where a constable searched the
appellant illegally and found a quantity of offending article in
his pocket that it would be a dangerous obstacle to the
administration of justice if it were held, because evidence was
obtained by illegal means, it could not be used against a party
charged with an offence. See Jones v. Owens. The Judicial
Committee in Kuruma v. R. dealt with the conviction of an
accused of being in unlawful possession of ammunition which
had been discovered in consequence of a search of his person
by a police officer below the rank of those who were
permitted to make such searches. The Judicial Committee
held that the evidence was rightly admitted. The reason given
was that if evidence was admissible it matters not how it was
obtained. There is of course always a word of caution. It is
that the judge has a discretion to disallow evidence in a
criminal case if the strict rules of admissibility would operate
unfairly against the accused. That caution is the golden rule
in criminal jurisprudence.”
30. Referring next to the scheme of Sections 154, 155 and 156 as contained
in Chapter-XII of the Cr.P.C., Ms.Mukta Gupta contended that while the
provisions of Section 156(3) provide for investigation into cognizable offences
upon orders of a Magistrate empowered under Section 190 to order such
investigation, in clear contrast the provisions of 155(2) provide for
investigation of non-cognizable cases, laying down that no police officer shall
investigate a non-cognizable case without the orders of a Magistrate having
power to try such case or commit such case for trial. The application submitted
by the SHO, Police Station Tughlak Road, for the registration of the case under
Section 182 IPC and the investigation thereon was in accordance with the
legislative mandate as set down in Section 155(2). The order of the learned
ACMM dated 8
th
June, 2006 was, therefore, an order passed in exercise of the
powers vested in the ACMM by virtue of sub-Section (2) of Section 155. No
cognizance, as contended by Mr.Luthra, was taken by learned ACMM by order
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dated 8
th
June, 2006. Applying the same analogy, Ms. Gupta contended that the
further contention of Mr.Luthra that, the learned ACMM had gravely erred by
taking cognizance in the present case time and again, i.e., on 8
th
June, 2006 and
again on 4
th November, 2006, does not hold water.
31. Adverting to the contention raised by Mr.Harish Salve, the learned
senior counsel that the act of the SHO, Police Station Tughlak Road in filing an
application before the Magistrate for permission to investigate a noncognizable
offence under Section 155(2) Cr.P.C. instead of filing a complaint
clearly shows that he as a public servant had no knowledge of the commission
of the offence on which the complaint could have been filed by him, he was
seeking orders from the Court for investigation of a non-cognizable offence,
Ms. Mukta Gupta contends that the SHO, Police Station Tughlak Road, as is
evident from his application, had the knowledge about the commission of the
offence. He merely sought permission to collect material in proof thereof as
envisaged by Sub Section (2) of Section 155 Cr.P.C.
32. The question which arises is: What is the meaning of taking cognizance
for the initiation of proceedings? The term cognizance is not defined anywhere
in the Code of Criminal Procedure. Section 190 of the Code, however, deals
with cognizance by the Magistrate while Section 193 refers to cognizance of
offences by the Court of Sessions. Section 190, which is apposite, reads as
follows:
“190. Cognizance of offences by Magistrates.– (1) Subject to the
provisions of this Chapter, any Magistrate of the first class, and
any Magistrate of the second class specially empowered in this
behalf under sub-section (2), may take cognizance of any offence–
(a) upon receiving a complaint of facts which constitute such
offence;
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(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under subsection
(1) of such offences as are within his competence to
inquire into or try.”
33. What amounts to the taking of cognizance was considered by a threeJudge
Bench of the Hon’ble Supreme Court in the case of R.R.Chari Vs. State
of U.P. reported in (1951) 2 SCR 312 wherein Kania, CJ (as His Lordship
then was), after noticing the provisions of Section 190 of the Code adverted to
the case of Gopal Marwari Vs. Emperor AIR 1943 Patna 245, wherein it was
observed that the word ‘cognizance’ is used in the Code to indicate the point
when the Magistrate or a Judge first takes judicial notice of an offence. It is a
different thing from the initiation of proceedings. It is the condition precedent
to the initiation of proceedings by the Magistrate. The Court noticed that the
word ‘cognizance’ is a word of somewhat indefinite import and it is perhaps not
always used in exactly the same sense. In paragraph 9 of the judgment, Their
Lordships referred to and approved of the law laid down by Das Gupta, J in
Supdt. Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar
Banerjee AIR 1950 CALCUTTA 437 as follows:
“What is taking cognizance has not been defined in the
Criminal Procedure Code and I have no desire to attempt to
define it. It seems to me clear however that before it can be
said that any magistrate has taken cognizance of any offence
under Section 190(1)(a), Criminal Procedure Code, he must
not only have applied his mind to the contents of the petition
but he must have done so for the purpose of proceeding in a
particular way as indicated in the subsequent provisions of
this Chapter – proceeding under Section 200 and thereafter
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sending it for inquiry and report under Section 202. When
the Magistrate applies his mind not for the purpose of
proceeding under the various sections of the Chapter but for
taking action of some other kind, e.g., ordering investigation
under S.156(3) or issuing a search warrant for the purpose of
investigation, he cannot be said to have taken cognizance of
the offence.”
34. Another three-Judge Bench of the Hon’ble Supreme Court in the case of
D.Lakshminarayana V. V.Narayana AIR 1976 SC 1672 dealing with the same
question held as follows:
“14. This raises the incidental question. What is meant by
“taking cognizance of an offence” by the Magistrate within the
contemplation of Section 190? This expression has not been
defined in the Code. But from the scheme of the Code, the
content and marginal heading of Section 190 and the caption
of Chapter XIV under which Sections 190 to 199 occur, it is
clear that a case can be said to be instituted in a Court only
when the Court takes cognizance of the offence alleged therein.
The ways in which such cognizance can be taken are set out in
clauses (a), (b) and (c) of Section 190 (1). Whether the
Magistrate has or has not taken cognizance of the offence will
depend on the circumstances of the particular case including
the mode in which the case is sought to be instituted, and the
nature of the preliminary action, if any, taken by the
Magistrate. Broadly speaking, when on receiving a complaint,
the Magistrate applies his mind for the purposes of proceeding
under Section 200 and the succeeding sections in Chapter XV
of the Code of 1973, he is said to have taken cognizances of the
offence within the meaning of Section 190(1)(a). If, instead of
proceeding under Chapter XV, he, has in the judicial exercise
of his discretion, taken action of some other kind, such as
issuing a search warrant for the purpose of investigation, or
ordering investigation by the police under Section 156(3), he
cannot be said to have taken cognizance of any offence.”
35. Clearly, therefore, in the present case, in my view, the learned ACMM
having passed order dated 08.06.2006 for investigating non-cognizable
offences under Sections 182/201/109/114/120-B IPC by virtue of the powers
vested in the ACMM under Section 155(2) contained in Chapter XII of the
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Code, it cannot be said that the Magistrate took cognizance of the said offences
within the meaning of Section 190 of the Code. This is even otherwise
apparent from the fact that cognizance was specifically taken by the ACMM
after the filing of the charge-sheet to which the complaint of the SHO Inspector
Madanjit Singh of Police Station Tughlaq Road dated 30.10.2006 was
appended. The question which arises is: Was the ACMM entitled to take
cognizance by her order dated 04.11.2006 or was the ACMM debarred from
taking cognizance by virtue of the provisions of Section 195(1)(a) and (1)(b) as
contended by the learned counsel for the petitioners.
36. In the above backdrop, it is proposed to deal first with Mr. Salve’s
contention with regard to the absence of a complaint. According to Mr. Salve,
as noticed above, the impugned order of the learned ACMM dated 4
th
November, 2006 purports to take cognizance not on the basis of any complaint,
but on the basis of the charge-sheet filed by the SHO, Police Station Sarita
Vihar, which cannot be treated as a complaint within the meaning of Section
195(1)(a) of the Cr.P.C. First, a look at the definition of complaint as set out in
Section 2(d) and the explanation thereto, which are reproduced hereunder:
“2(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include a
police report.
Explanation.– A report made by a police officer in a
case which disclosed, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall be
deemed to be the complainant.”
37. It will be pertinent to note at this juncture that the explanation to Section
2(d), inserted by way of amendment by Act 45 of 1978, is really in the nature
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of a proviso to Section 2(d) though captioned as an “Explanation”. While
clause (d) provides that a complaint does not include a police report, the
explanation clarifies that in the case of a non-cognizable offence, a report
made by a police officer shall be deemed to be a complaint and the police
officer by whom such report is made shall be deemed to be the complainant.
Thus, quite clearly, the legislature in its wisdom by way of amendment
provided that in the case of a non-cognizable offence, the report made by a
police officer shall be deemed to be a complaint.
38. On facts, a bare glance at the report made by the police officer in the
instant case shows that a complaint was filed in the instant case in the Court of
the learned ACMM by the SHO, Inspector Madanjit Singh, Police Station
Tughlaq Road. The list of documents enclosed with the charge-sheet at serial
No.2 reads: “Copy of FIR alongwith complaint submitted by the complainant
and order of Hon’ble Court passed on 08.06.2006 – 11 PPs”. It appears that by
way of abundant precaution, another complaint was also filed by the same
complainant, which is shown at serial No.21 of the list of documents as
follows: “Complaint under Section 195 Cr.P.C. – 3 PPs”. There is, therefore,
no manner of doubt that a complaint was filed by the concerned police officer
in the instant case before the learned ACMM, whose permission was also
sought for investigating the non-cognizable offence. The contention of Mr.
Harish Salve and Mr. Siddharth Luthra, the learned senior counsel for the
petitioners, that the provisions of Section 195(1)(a) would operate as a bar to
the present proceedings is, therefore, wholly unsustainable.
39. Adverting next to the second limb of Mr. Salve’s argument that the
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proceedings are contrary to the provisions of Section 195(1)(b), inter alia, for
the reason that the complaint under Section 193 IPC should have been filed by
the learned ACMM trying the Rahul Mahajan case, it deserves to be noticed
again that in respect of Section 193 IPC, the learned ACMM had taken suo
moto cognizance of the offence under Section 193 IPC as the said offences
were committed much prior to the commencement of the trial in the Rahul
Mahajan case as is clear from the order dated 04.11.2006. There is, therefore,
no substance in the contention of the learned senior counsel for the petitioners
that in the absence of a complaint in writing, the learned ACMM could not
have taken cognizance of the offence under Section 193 of the IPC.
40. Mr. Salve’s further contention that the language of Explanation 2 to
Section 193 IPC does not limit the coverage provided by the said Explanation
to offences in Chapter XI of the Penal Code, but the said Explanation is
couched in general language, and in the absence of words of limitation in the
said Explanation, its language must be given full effect to, in my view, also has
no substance for the reason that a bare glance at Section 195 (b) (i) makes it
clear that the bar of the said sub-section will apply only “when such offence is
alleged to have been committed in, or in relation to, any proceeding in any
Court”. Any other interpretation would render the words “when such offence
is alleged to have been committed in, or in relation to, any proceeding in any
Court” otiose. It also cannot be lost sight of that the provisions of Section 195
have to be strictly construed as they create a bar on the power of the Court to
take cognizance of an offence and any provision which ousts the jurisdiction of
the Court, which it otherwise possesses, cannot be given an enlarged meaning.
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In case such a provision is not given a restricted meaning, serious
consequences may follow and the result may be even to facilitate the escape of
a guilty person and lack of redressal to an aggrieved complainant.
41. Coming next to the contention of Mr. Salve that miscarriage of justice
has resulted from the breach of the provisions of Section 340 Cr.P.C., first a
look at the provisions of Section 340 of the Code, which reads as follows:
“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
interest of justice that an inquiry should be made into any
offence referred to in clause (b) of sub-section (1) of 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
jurisdiction;
(d) take sufficient security for the appearance for 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.
(2) The power conferred on a Court by sub-section (1) in
respect of an offence may, in any case where that Court has
neither made a complaint under sub-section (1) in respect of
that offence nor rejected an application for the making of
such complaint, be exercised by the Court to which such
former Court is subordinate within the meaning of subsection
(4) of section 195.
(3) A complaint made under this section shall be signed,–
(a) where the Court making the complaint is a High
Court, by such officer of the Court as the Court
may appoint;
(b) in any other case, by the presiding officer of the
Court or by such officer of the Court as the Court
may authorise in writing in this behalf;
(4) In this section, “Court” has the same meaning as in
section 195.” (emphasis supplied)
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42. Clause (b) (i) of Section 195 refers to offences mentioned in Chapter XI
of the IPC, which is headed as – ‘Of False Evidence And Offences Against
Public Justice’. The offences mentioned in this clause relate to giving or
fabricating false evidence or making a false declaration in any judicial
proceeding or before a Court of Justice or before a public servant, who is
bound or authorised by law to receive such declaration, and also to some other
offences which have a direct co-relation with proceedings in the Court of
Justice.
43. Indubitably, Section 195(1) mandates a complaint in writing of the
Court for taking cognizance of the offences enumerated in clause (b) (i) and
(b)(ii) thereof and Section 340 which occurs in Chapter XXVI sets out the
procedure for filing of such a complaint and other matters connected therewith
and mandates that where the Court is of the opinion that an offence referred to
in clause (b) of sub-section (1) of Section 195 has 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 enquiry, if any, as it thinks necessary, record
a finding to that effect and make a complaint thereof in writing. Indubitably
also, the said procedure provides a vital safeguard in favour of the accused
persons or the witnesses as the case may be, but as the heading of Chapter
XXVI, which reads: “Provisions As To Offences Affecting The Administration
Of Justice” clearly shows, the intention of the legislature is manifest that the
offences committed should be of such type which directly affect the
administration of justice, viz., which are committed in or in relation to a
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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. In the instant
case, there is no allegation that any offence affecting the administration of
justice was committed while the proceedings were pending in any Court of law
and, therefore, clearly neither Section 195(1)(b)(i) will be attracted nor Section
340 will be applicable.
44. A Constitution Bench of the Hon’ble Supreme Court comprising of
seven Judges in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr.
2005(3) SCALE 93, in view of the conflict of opinion between two decisions
of the Supreme Court each rendered by a bench of three learned Judges in
Surjit Singh vs. Balbir Singh 1996 (3) SCC 533 and Sachida Nand Singh vs.
State of Bihar 1998 (2) SCC 493 regarding the interpretation of Section
195(1)(b)(ii) of the Code of Criminal Procedure 1973, while holding that
Section 195 Cr.P.C. is a sort of exception to Section 190 Cr.P.C. which
provides for taking of cognizance by a Magistrate and creates an embargo on
the power of the Court to take cognizance in certain types of offences
enumerated therein, in paragraphs 25 and 26 of its judgment held as follows:
“25. In view of the discussion made above, we are of the
opinion that Sachida Nand Singh has been correctly decided
and the view taken therein is the correct view. Section
195(1)(b)(ii) Cr.P.C. would be attracted only when the
offences enumerated in the said provision have been
committed with respect to a document after it has been
produced or given in evidence in a proceeding in any Court
i.e. during the time when the document was in custodia legis.
26. In the present case, the Will has been produced in the
Court subsequently. It is nobody’s case that any offence as
enumerated in Section 195(b)(ii) was committed in respect to
the said will after it had been produced or filed in the Court
of District Judge. Therefore, the bar created by Section
195(1)(b)(ii) Cr.P.C. would not come into play and there is
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no embargo on the power of the Court to take cognizance of
the offence on basis of the complaint filed by the respondents.
The view taken by the learned Additional Sessions Judge and
the High Court is perfectly correct and calls for no
interference.”
45. Applying the law as laid down by the Constitution Bench, I am of the
opinion that Section 195(1)(b)(i) Cr.P.C. would be attracted only when the
offences enumerated in the said provision have been committed “in or in
relation a proceeding in that Court”. The fact that the procedure for filing a
complaint by the Court has been provided in Chapter XXVI clearly shows that
the legislative intent was that the offence committed should be of such type
which directly affects the administration of justice. Any offence committed in
relation to Sections 193 to 196, 199, 200, 205 to 211 and 228, which is not
alleged to have been committed in, or in relation to, any proceeding in any
Court, cannot be said to be an offence affecting the administration of justice.
46. The reliance placed by Mr. Salve on the case of T.T. Antony to urge that
the filing of the second FIR with regard to the same incident is impermissible
in law, to my mind, is also misplaced in the facts of the instant case. A bare
glance at the decision of the Supreme Court in T.T. Antony’s case shows that
the question of the legality of the second FIR registered as Crime No.268/1997,
in respect of the cognizable offence mentioned therein after about three years
of the occurrence, when in that regard two FIRs pertaining to two different
places were already filed and registered as Crime Nos.353 and 354/1994, was
being examined by the Hon’ble Supreme Court. The Court after examining the
entire facts came to the conclusion that the registration of the information in
Crime No.268/1997 by registration of a second FIR in regard to the same
incident was not permissible in view of the fact that a comparison and critical
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examination of the FIRs in Crime Nos.353 and 354/1994 on the one hand and
FIR in Crime No.268/1997 on the other, disclosed that the date and place of
occurrence were the same and the narration of events was also the same. In
this view of the matter and after recording that in truth and substance the
essence of the offence in Crime Nos.353 and 354/1994 was the same as in
Crime No.268/1997, the Supreme Court held that the registration of the second
FIR was irregular on the facts of the case, and also in view of the fact that a
fresh investigation after a lapse of three years of the occurrence was
unwarranted and illegal, more so, as the investigation in the earlier cases
( Crime Nos.353 and 354/1994) was pending.
47. Significantly, however, in the case of T.T. Antony, the Supreme Court
specifically approved of the test laid down in its earlier decision rendered in
Ram Lal Narang vs. State (1979) 2 SCC 322, relied upon by the Solicitor
General in T.T. Antony’s case to contend that there can be a second FIR in
respect of the same subject matter. Repelling the contention of the learned
Solicitor General on facts of the case, the Supreme Court noticed that the facts
in Ram Lal Narang’s case were entirely different and justified the registration
of a second FIR in the facts and circumstances of the said case.
48. In Narang’s case, the facts were somewhat interesting. Two precious
antique pillars of sandstone were deposited in the Court of Ilaqa Magistrate,
Karnal, as stolen property. One N.N. Malik filed an application before the
Magistrate seeking custody of the pillars to make in-detail study on the pretext
that he was a research scholar. It appears that the then Chief Judicial
Magistrate of Karnal (H.L. Mehra), was a friend of Malik. At the instance of
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Mehra the said Ilaqa Magistrate ordered that the custody of the pillars be given
to Malik on his executing a bond. About three months thereafter Malik
deposited two pillars in the Court of Ilaqa Magistrate, Karnal. After some time
it came to light that the pillars returned by Malik were not the original genuine
pillars but were fake pillars. An FIR was lodged against both Malik and Mehra
under Section 120-B read with Sections 406 and 420 IPC alleging conspiracy
to commit criminal breach of trust and cheating. CBI after necessary
investigation filed charge-sheet in the Court of Special Magistrate, Ambala,
against both of them. Ultimately on the application of the Public Prosecutor
the case was permitted to be withdrawn and the accused were discharged.
Sometime later the original genuine pillars were found in London which led to
registering an FIR in Delhi under Section 120-B read with Section 411 IPC,
and Section 25(1) of the Antiquities and Art Treasures Act, 1972 against three
persons who were brothers (referred to as “the Narangs”). The gravamen of
the charge against them was that they, Malik and Mehra, conspired together to
obtain custody of the genuine pillars, got duplicate pillars made by experienced
sculptors and had them substituted with a view to smuggle out the original
genuine pillars to London. After issuing process for appearance of the Narangs
by the Magistrate at Delhi, an application was filed for dropping the
proceedings against them on the ground that the entire second investigation
was illegal as the case on the same facts was already pending before the
Ambala Court, therefore, the Delhi Court acted without jurisdiction in taking
cognizance of the case on the basis of illegal investigation and the report
forwarded by the police. The Magistrate referred the case to the High Court and
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the Narangs also filed an application under Section 482 CrPC to quash the
proceedings. The High Court declined to quash the proceedings, dismissed the
application of the Narangs and thus answered the reference. On appeal to the
Supreme Court, it was found by the Court that the two FIRs in truth and
substance were different.
49. The observations made by the Hon’ble Supreme Court in Ram Lal
Narang’s case are apposite:
“20. Anyone acquainted with the day-to-day working of the
criminal courts will be alive to the practical necessity of the
police possessing the power to make further investigation and
submit a supplemental report. It is in the interests of both the
prosecution and the defence that the police should have such
power. It is easy to visualise a case where fresh material may
come to light which would implicate persons not previously
accused or absolve persons already accused. When it comes
to the notice of the investigating agency that a person already
accused of an offence has a good alibi, is it not the duty of
that agency to investigate the genuineness of the plea of alibi
and submit a report to the Magistrate? After all the
investigating agency has greater resources at its command
than a private individual. Similarly, where the involvement of
persons who are not already accused comes to the notice of
the investigating agency, the investigating agency cannot
keep quiet and refuse to investigate the fresh information. It
is their duty to investigate and submit a report to the
Magistrate upon the involvement of the other persons. In
either case, it is for the Magistrate to decide upon his future
course of action depending upon the stage at which the case
is before him. If he has already taken cognizance of the
offence, but has not proceeded with the enquiry or trial, he
may direct the issue of process to persons freshly discovered
to be involved and deal with all the accused in a single
enquiry or trial. If the case of which he has previously taken
cognizance has already proceeded to some extent, he may
take fresh cognizance of the offence disclosed against the
newly involved accused and proceed with the case as a
separate case. What action a Magistrate is to take in
accordance with the provisions of the CrPC in such situations
is a matter best left to the discretion of the Magistrate. The
criticism that a further investigation by the police would
trench upon the proceeding before the court is really not of
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very great substance, since whatever the police may do, the
final discretion in regard to further action is with the
Magistrate. That the final word is with the Magistrate is
sufficient safeguard against any excessive use or abuse of the
power of the police to make further investigation. We should
not, however, be understood to say that the police should
ignore the pendency of a proceeding before a court and
investigate every fresh fact that comes to light as if no
cognizance had been taken by the court of any offence. We
think that in the interests of the independence of the
magistracy and the judiciary, in the interests of the purity of
the administration of criminal justice and in the interests of
the comity of the various agencies and institutions entrusted
with different stages of such administration, it would
ordinarily be desirable that the police should inform the court
and seek formal permission to make further investigation
when fresh facts come to light.”
50. From the above, I have no hesitation in coming to the conclusion that the
facts of the instant case clearly merit the recording of two separate FIRs. The
scope and ambit of the two FIRs is entirely different as also the names of the
accused, the time and the place of the occurrence. While in the first FIR, being
FIR No.104/2006, which was under the NDPS Act, the accused were Rahul
Mahajan and Others, who had consumed heroine and cocaine at 7, Safdarjung
Enclave, in the second FIR, being FIR No.305/2006, the accused are the
doctors and nurses of the Apollo Hospital, who have committed offences in the
Apollo Hospital itself by tampering with the records of the hospital. As is
evident from a perusal of the charge-sheet, the names of all the accused persons
(14 in number) have been kept in column No.4 of the charge-sheet, except
accused Harish Sharma. Accused Harish Sharma had been arrested in FIR
No.104/2006 under Sections 201/34 IPC, Police Station Tughlaq Road, New
Delhi and accordingly his name has been kept in column No.2 of the chargesheet
in FIR No.305/2006, that is, in the instant case. The said accused
apparently played a multiple role having committed the offence punishable
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under Section 201 in case FIR No.104/2006 as well.
51. Adverting next to the submission of Mr. Salve that in arriving at the
conclusion that offences under Chapter X and Chapter XI have been
committed, the learned ACMM failed to keep in mind the Bolam test and the
standards prescribed by the Hon’ble Supreme Court in the case of Dr. Suresh
Gupta (supra) and in the case of Dr. Mathew Jacob. It may be noticed that in
the said cases, the appellants were tried for rash and negligent acts resulting in
death, the acts being committed in discharge of their professional duties. In the
instant case, the petitioners are not being tried for medical negligence and are
being accused of offences relating to the administration of justice, e.g.,
showing the administration of a drug by the name of ‘Fentanyl’ to hide the
evidence of opiate poisoning of Rahul Mahajan. The allegation of the
prosecution is that the said drug was not in fact administered as the patient had
been intubated immediately and the said drug is a pre-procedural analgesic and
used for the purpose of intubation. Post-intubation, there was no requirement
of ‘Fentanyl’, which could also prove contra-indicative. However, as per the
records of Apollo Hospital itself, both the patients were intubated in the
Casualty itself, whereas ‘Fentanyl’ was prescribed later on in the ICU, when it
was no more required. It is further the allegation of the prosecution that as per
the records of the Apollo Hospital, no bill was raised for the administration of
‘Fentanyl’ and this shows that the drug was not administered, though shown to
be administered with a view to hide the toxicity screen of accused Rahul
Mahajan.
52. The contention of the petitioners that there is nothing on record to
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warrant the prosecution of the petitioners under Sections 182/201/177 is also
not borne out from the record as also their contention that Section 120-B IPC is
not attracted. With regard to the offences under Sections 182/201/177 and 193
IPC, there is ample material on record in respect of the said offences. The very
fact that the petitioners took part in the press conference and gave incorrect
facts to the media prima facie shows that they were a part of the conspiracy to
conceal the offence and screen the offenders. As observed by the Hon’ble
Supreme Court in State vs. Nalini and Ors. reported as (1999) 5 SCC 253, the
existence of a conspiracy has to be inferred from proved circumstances, as in
an offence which is shrouded with secrecy no direct evidence of common
intention of the conspirators can normally be produced before the Court nor
had the stage for production of such evidence if any, arisen.
53. The contention of Mr. Siddarth Luthra, the learned senior counsel for
Dr. Prasad Rao that cognizance was taken by the learned ACMM on two
different occasions, that is, on 8
th
June, 2006 and 4
th November, 2006 and his
further contention that the learned ACMM was bound to follow the procedure
laid down in Chapter XV of the Cr.P.C. as set out in Sections 200–203, i.e., to
record pre-summoning evidence, is again not borne out by the records. Clearly,
no cognizance was taken by the learned ACMM by her order dated 8
th
June,
2006. The complainant/Inspector Madanjit Singh had moved an application for
investigation of a non-cognizable offence and registration of an FIR in respect
of the offence under Section 182 IPC on 8
th
June, 2006 and on the same date,
that is, on 8
th
June, 2006, an order was passed by the learned ACMM directing
registration of the FIR and investigation into the offence under Section 182
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IPC. It was only after the submission of the Report by the SHO, Police Station
Sarita Vihar that cognizance was eventually taken by the learned ACMM by
her order dated 04.11.2006. The contention of Mr. Luthra that the so called
charge-sheet was only a Report pursuant to an enquiry under Section 202
Cr.P.C. is also without merit. In the instant case, clearly no orders were passed
by the learned ACMM under Section 202 of the Code. It is trite law that the
investigation envisaged by Section 202 contained in Chapter XV is different
and distinct from the investigation contemplated under Sections 155 and 156 of
the Code, contained in Chapter XII, which deals with “Information To The
Police And Their Powers To Investigate”.
54. The scope and ambit of Section 202(1) of the Code was recently
examined by the Supreme Court in the case of Mohd. Yousuf vs. Afaq Jahan
& Anr. 1 (2006) CCR 1 (SC). Holding that the Magistrate need not order any
investigation under Chapter XII if he proposes to take cognizance of the
offence, the Hon’ble Supreme Court held that once the Magistrate takes
cognizance of the offence he has to follow the procedure envisaged in Chapter
XV of the Code. It was also held that a reading of Section 202 of the Code
makes the position clear that the investigation referred to therein is of a limited
nature as it is only for helping the Magistrate to decide whether or not there is
sufficient ground for him to proceed further.
55. To sum up, even assuming that any illegality has been committed in the
course of investigation (though in my view no illegality is shown to have been
committed), the orders dated 8
th
June, 2006 and 4
th November, 2006 passed by
the learned ACMM are, in my considered opinion, not liable to be quashed as
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no miscarriage of justice is shown to have been occasioned thereby. (See State
vs. Navjot Sandhu 2005 (11) SCC 600; H.N. Rishbud vs. State of Delhi 1955
(1) SCR 1150; State of AP vs. P.V. Narayana AIR 1971 SC 811; Pooran Mal
vs. Director of Inspection AIR 1974 SC 348 and State of MP vs. Ramesh C.
Sharma 2005 (12) SCC 628). I, therefore, see no reason to grant the prayer of
the petitioners for issuance of a writ of prohibition restraining the learned
ACMM from proceeding with case FIR No.305/2006 and for quashing of the
orders dated 8
th
June, 2006 and 4
th November, 2006 passed by the learned
ACMM. The learned ACMM shall accordingly be at liberty to proceed with
the case in accordance with law.
56. The prayers in the above writ petitions are accordingly declined. Writ
petitions stand dismissed.
Copy of this order be sent to the learned ACMM for proceeding further
with the case.
FEBRUARY 15, 2008 REVA KHETRAPAL, J.
dc/km
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