Bar For Taking Cognizance Not Attracted When High Court As A Superior Court Directs A Complaint To Be Filed: SC Summarizes Principles On Prosecution U/S. 195 CrPC

The Apex Court made such observations while restoring a two-decade-old case of evidence tampering registered against former Kerala Minister Antony Raju and observed that the High Court had wrongly held the proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C

The Division Bench comprising Justice C.T. Ravikumar and Justice Sanjay Karol said, “...the initiation of the present proceedings in the present case, was from the judgment and order dated 5thFebruary, 1991 of the Kerala High Court in Criminal Appeal No. 20 of 1991, in acquitting Andrew Salvatore directing the matter of planting of Mo2 be positively looked into. This was followed by an investigation by the vigilance officer of the Court. Therefore, in SLP(Crl.)No.4887/2024 the impugned order, the High Court has erroneously observed that there is no judicial order concerning the present proceedings.”

AOR Deepak Prakash represented the Appellant while Senior Advocate P.V. Dinesh represented the Respondent.

The genesis of this case dates back to the year 1990 when an FIR came to be registered under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act. One Australian national was found to be in possession of charas, which were kept concealed in the pocket of his underwear. The Sessions Court convicted him. It was later found that the underwear was not the size of the convicted person. Thereafter, it came to light that the clerk of the Court and Advocate Antony Raju conspired together with the intention and preparation to cause the disappearance of evidence. In the year 2022, both the accused persons preferred quashing petitions which were allowed by the impugned Order.

Two petitions were filed before the Apex Court by one M.R. Ajayan, editor of “Green Kerela News" as he was aggrieved by the quashing of the grievous allegations in the complaint by the High Court. On the issue regarding the locus standi of Ajayan, the Bench said, “...we are of the considered view that the locus standi of the appellant in SLP(Crl.)No.4887 of 2024, does not come in the way of this Court hearing the same. The case at hand, which has been quashed by the High Court, involves serious allegations of interference with judicial processes which strike at the very foundation of both dispensation and the administration of justice.”

Another issue before the Bench was whether the High Court had rightly held the proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C. This Section curtails the general right of a person and the general right of a Magistrate to register a complaint when the offences enumerated thereunder are committed. Answering this question in the negative, the Bench observed that the criminal proceedings did not arise from a complaint by a private individual.

The High Court had held that as the said article was released from the custody of the Court, the same was unquestionably under 'Custodiam Legis’, and therefore, the bar u/s 195(1)(b) would get attracted.

The Apex Court highlighted the following principles relating to prosecutions under Section 195 Cr.P.C., as expounded by it in Sachida Nand Singh v. State of Bihar 8 (1998) 2 SCC 493 ; M.S. Ahlawat v. State of Haryana & Anr. (3-Judge Bench) (2000) 1 SCC 278 ; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. (5-Judge Bench) (2005) 4 SCC 370 ; Perumal v. Janaki (2-Judge Bench) (2014) 5 SCC 377; and CBI v. M. Sivamani (2-Judge Bench) (2017) 14 SCC 855:

• The procedure prescribed under Section 195 Cr.P.C. is mandatory in nature.
• The Section curtails the general right of a person and the general right of a Magistrate to register a complaint when the offences enumerated thereunder are committed.
• The Section deals with three distinct categories of offences: (1) contempt of lawful authority of public servants, (2) offence against public justice, and (3) offence relating to documents given in evidence. iv. Broadly, the scheme of the Section requires that the offence should be such which has a direct bearing on the discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a Court of justice, affecting the administration of justice.
• The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by the Court.
• To attract the bar under Section 195(1)(b), the offence should have been committed when the document was in “custodia legis” or in the custody of the Court concerned.
• The bar under Section 195(1)(b)(ii) cannot be thought to be applied when the forgery of a document has happened prior to its production in Court. The bar only applies in case the enumerated offence takes place after the production of the document or in evidence in any Court.
• High Courts can exercise jurisdiction and power enumerated under Section 195 on an application being made to it or suo-motu, whenever the interest of justice so demands.
• In such a case, where the High Court as a superior Court directs a complaint to be filed in respect of an offence covered under Section 195(1)(b)(i), the bar for taking cognizance, will not apply.

The Bench further held, “In the peculiar circumstances obtained in this case where the accused allegedly received a material object in question, from the judicial custody, despite there being no specific order for release thereof, and subsequently tinkered/ assisted in tinkering with the same and thereafter substituted it for the original.”

Holding that the interference by the High Court in quashing the case was unwarranted, the Bench set aside the impugned order and restored the order taking cognizance and all further proceedings pursuant to the same on the files of Judicial First Class Magistrate-I.

Cause Title: M.R. Ajayan v. State Of Kerala & Ors [Neutral Citation: 2024 INSC 881]

Appearance:

Appellants: AOR Deepak Prakash, Advocates Nachiketa Vajpayee, Divyangna Malik, J. Merlyn Rachel, Vishnu Priya,Vardaan Kapoor, Rahul Suresh, Saurabh Ajay Gupta, AOR D. K. Devesh, Advocates Nishant Bishnoi, Srishti Prabhakar, Ritik Gupta, Upendra Pratap Singh, Harsh Singh Rawat, Shashank Kumar Saurav, Suprabh Kumar Roshan

Respondents: AOR Deepak Prakash, Senior Advocates P.V. Dinesh, AOR Nishe Rajen Shonker, Advocates Anu K Joy, Alim Anvar, Anna Oommen, AOR Amith Krishnan H

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