Appeal against the quashing of order taking cognizance and further direction to take action under section 195 Cr.P.C
2. The present appeals arise from the common final judgment and order dated 10th March, 2023 passed by the High Court of Kerala at Ernakulam in CrL.M.C.No.5261 of 2022, whereby the order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C. No. 811 of 2014) on the files of Judicial First Class Magistrate-I, Nedumangad, were quashed and the Registry of the High Court was directed to take appropriate action against Antony Raju in accordance with the procedure set out under Section 195 of the Code of Criminal Procedure, 1973.
Factual matrix
An Australian national was caught at the airport for having possession of packets of contraband in his underwear
3. The genesis of this case dates back to the year 1990. On 4th April, 1990, an FIR came to be registered bearing Crime No.60 of 1990, under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act, wherein an Australian national, Andrew Salvatore, was travelling from Thiruvananthapuram to Mumbai. While undergoing frisking at the airport, he was found to be in possession of 2 packets containing 55 grams and 6.6 grams of charas, which were kept concealed in the pocket of his underwear. On registration of the FIR, the person, along with the seized articles and personal belongings, were kept in the custody of the Valiyathura Police Station.
Judicial Magistrate released accused personal belongings on his application
4. These seized articles were produced before the Judicial First Class Magistrate– II, Thiruvananthapuram. Accused No.1 was the Clerk, in the custody of whom, by virtue of a judicial order, the articles were entrusted. Thereafter, on 17.07.1990, an application was made on behalf of Andrew Salvatore, seeking the release of his personal belongings, which came to be permitted.
Underwear was returned to sessions court and marked as an exhibit during trial
5. Accordingly, the articles were released to accused No.2/appellant in SLP(Crl.)No.7896 of 2023, who was the junior lawyer of the counsel appearing for Andrew Salvatore. Pertinently, one of the items of the case property, i.e., the underwear of Andrew Salvatore, was also released along with the personal articles directed to be released by the Court. However, later, the underwear was returned by Accused No.2 to Accused No.1, which was forwarded to the Sessions Court and during trial, it was marked as Exhibit Mo2, in case Crime No.60 of 1990.
Sessions court convicted but though Hon’ble High Court acquitted him based on the practical test conducted before it and further directed to inquire into the matter
6. The Sessions Court convicted Andrew Salvatore and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 Lakh under Section 20(b)(11) of the NDPS Act, 1985. An appeal was preferred as Criminal Appeal No.20 of 1991 before the High Court of Kerala. During the course of hearing, a practical test was conducted, and it was found that the said underwear (Ex. Mo2) was not the size of the convicted person. Therefore, vide judgment and order dated 5 th February, 1991, the High Court while acquitting Andrew Salvatore, observed that “there is a strong possibility of Mo2 being planted in an attempt to help the appellant to wriggle out of the situation. I hope that this matter will be duly enquired into and dealt with properly by the concerned authorities… A copy of this judgment be forwarded to the Chief Secretary for appropriate action.”
Based on a report the Hon’ble High Court directed the sheristadar to lodge FIR before police
7. Subsequent to the judgment dated 5th February, 1991, the Vigilance Officer of the High Court of Kerala conducted an investigation and a report in this regard was submitted highlighting the necessity of a detailed investigation into the incident. This resulted in an Office Memorandum dated 27th September, 1994 being issued by the High Court requesting the District Court, Thiruvananthapuram, to direct the Sheristadar to lodge a First Information Report before the police.
8. Thereafter on 5th October, 1994, an FIR bearing No.215/94 came to be registered stating that – “As per the Order No.8384/94 dated 27.09.1994 issued by the Kerela High Court, a letter has been sent to the Trivandrum District Judge. As per the direction of the District Court, Trivandrum, the following charges have been imposed in SC No.147/90 for replacing Mo2 (Jetty), hence the accused cheated the Court by destroying the evidence and committed the offence.” It was further stated that the FIR pertains to replacing the Mo2 by an unknown person.
9. Subsequently, a chargesheet came to be filed on 24th March, 2006 against one Mr. Jose, the Thondi clerk of the Court and Advocate Antony Raju under Sections 120(B), 420, 201, 193, 217 and 34 of the Indian Penal Code. Allegedly, these accused persons conspired together with the intention and preparation to cause the disappearance of evidence (Mo2). It stated that Accused No.1, Clerk handed over Mo2 to Accused No.2, Antony Raju, who made alterations thereto, ensuring that it would not fit Accused Andrew Salvatore. Cognizance of this final report came to be taken by Judicial First Class Magistrate Court-I, Nedumangad, as C.C. No.811/2014.
Charge sheet was filed against court clerk and advocate for conspiring together with intention to cause the disappearance of evidence
9. Subsequently, a chargesheet came to be filed on 24th March, 2006 against one Mr. Jose, the Thondi clerk of the Court and Advocate Antony Raju under Sections 120(B), 420, 201, 193, 217 and 34 of the Indian Penal Code. Allegedly, these accused persons conspired together with the intention and preparation to cause the disappearance of evidence (Mo2). It stated that Accused No.1, Clerk handed over Mo2 to Accused No.2, Antony Raju, who made alterations thereto, ensuring that it would not fit Accused Andrew Salvatore. Cognizance of this final report came to be taken by Judicial First Class Magistrate Court-I, Nedumangad, as C.C. No.811/2014.
Quash preferred against taking cognizance due to the bar under section 195(1)(B) Cr.P.C
10. In the year 2022, both these accused persons preferred separate petitions (being Crl.M.C.No.7805/2022 & Crl.M.C.No.5261/2022) before the High Court of Kerela under Section 482 of the Cr.P.C. seeking quashing of the proceedings of Crime No.215 of 1994 and C.C.No.811/2014 on the ground that cognizance in the present case could not have been taken due to the bar created under Section 195(1)(b) of the Cr.P.C.
Quash allowed with further directions to take appropriate measures under section 195(1)(b) of the Cr.P.C
11. Resultantly, the impugned order came to be passed, allowing the petitions and thereby quashing the order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C.No.811/2014) on the files of Judicial First Class Magistrate-I, Nedumangad. However, it directed the Registry hereinafter “IPC” of the Court to undertake appropriate measures in accordance with the procedure under Section 195(1)(b) of the Cr.P.C.
Appeal against the order of the Hon’ble High Court
12. Impugning the said order passed by the High Court, two petitions have been filed before this Court. SLP(Crl.)No.4887 of 2024 is filed by M.R. Ajayan, stating that he is a socially spirited person and editor of “Green Kerela News”. He is said to be aggrieved by the quashing of the grievous allegations in the complaint by the High Court. SLP (Crl.)No.7896 of 2023 is filed by Mr. Antony Raju, who is Accused No.2, stating that the High Court could not have directed de novo steps to be taken against the accused on the allegations made out in the quashed proceedings. Accused No.1 has not assailed any order.
Reasoning of the court below
13. The High Court vide the impugned order, after considering the contentions of the parties, gave the following findings while allowing the petitions:
i. The release of article Mo2 (Jetty) from the custody of the Court, followed by its return after being altered, would be considered an act of criminal conspiracy under Section 120B, IPC and will also constitute an offence under Section 193, IPC. As the said article was released from the custody of the Court, and at that time, the same was unquestionably under ‘Custodiam Legis’, and therefore, the bar u/s 195(1)(b) would get attracted.
ii. The cognizance taken on the final report was not legally sustainable, as it contravened the legal requirements under Section 195 (1)(b) of the Code of Criminal Procedure. The Court categorically distinguished the decision of this Court in CBI v. M. Sivamani [(2017) 14 SCC 855 (2-Judge Bench)] on the point that the procedural distinctions between judicial and administrative orders are underscored by this case, where the CB-CID had initiated the investigation based on a judicial order issued by the Madras High Court, rather than an administrative order, as in the present case.
Issues for consideration
14. We have heard the learned counsel for the parties and have also perused the written submissions filed. The issues which arise for consideration of this Court are:
i. Whether M.R. Ajayan, appellant in SLP(Crl.)No.4887 of 2024 has the locus standi to prefer this SLP against the impugned order?
ii. Whether the High Court has rightly held the proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C.? iii. Independent of the above, whether the High Court could have ordered de novo steps to be taken against the appellant?
Discussion and analysis
15. Coming to the first issue at hand, concerning the locus standi of Mr. M.R. Ajayan, the appellant in SLP(Crl.)No.4887 of 2024, he has submitted that he is a socially spirited person and editor of “Green Kerela News”. He had also filed an intervention application before the High Court of Kerala, resisting the quashing petition.
Rulings regarding locus standi of permitting third parties in appeal in criminal proceedings
16. Antony Raju, Respondent No.2 in SLP(Crl.)No.4887 of 2024/ appellant in the appeal arising out SLP(Crl.)No.7896 of 2023, has objected to the locus of Mr. M.R. Ajayan, submitting that third parties cannot be permitted to prefer appeal in criminal proceedings and has sought to place reliance on judgments of this Court in P.S.R. Sadhanantham v. Arunachalam & Anr [(5-Judge Bench) (1980) 3 SCC 141 9] National Commission for Women v. State of Delhi & Anr [(2-Judge Bench (2010) 12 SCC 599] and Amanuallah & Anr. v. State of Bihar & Ors [(2-Judge Bench) (2016) 6 SCC 699].
Locus standi explained
17. The locus of a private individual seeking the exercise of jurisdiction of this Court under Article 136 of the Constitution is no longer res integra. This Court in National Commission for Women (supra) has observed that an appeal by a private individual can be entertained, both sparingly and after due vigilance, following the exposition of law in Arunachalam (supra). Furthermore, in Amanuallah (supra), this Court dealt with this issue in detail and observed:
“Paras. 19 & 24”
18. More recently, similar to the case at hand, in Naveen Singh v. State of U.P. [(2- Judge Bench) (2021) 6 SCC 191], while considering the locus of the Petitioner therein, this Court observed that since the allegations concerned tampering with the order of the Court, hence locus is not that important but, in fact, insignificant with the State not carrying forward the matter any further.
Since the case quashed by the High Court involves serious allegations the locus standi of the appellant does not come in way
19. In view of the above expositions of law, 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. Therefore, the first issue is answered in the affirmative as it is incumbent upon this Court to check the correctness of the approach adopted by the High Court, and the locus of the appellant would not come in the way of the same.
Section 195 Cr.P.C
20. We now proceed to examine the second issue, which pertains to the bar of prosecution under Section 195(1)(b) of the Cr.P.C. It reads as:
“Section 195 Cr.P.C”
Principles to prosecute under section 195 Cr.P.C
21.The principles relating to prosecutions under Section 195 Cr.P.C., as expounded by this Court in Sachida Nand Singh v. State of Bihar [(3-Judge Bench) (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 Sivamani (supra) are:
i. The procedure prescribed under Section 195 Cr.P.C. is mandatory in nature.
ii. 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.
iii. 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.
v. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by the Court.
vi. 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.
vii. 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.
viii. 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.
ix. 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.
Cognizance was quashed based on section 195 Cr.P.C
22. In the instant case, the High Court, on the basis of the above bar on taking cognizance, has quashed the order taking cognizance and proceedings emanating therefrom. We are of the considered view, that this approach was not correct for the reasons set out below.
The criminal proceedings arise based on Hon’ble High Court direction and not from private individual
23. At this stage, we must reiterate and re-emphasize the genesis of the proceedings in this case. On a perusal of the FIR, it is clear that based on the letter issued by the Kerala High Court dated 27th September, 1994 and by the District Judge, Trivandrum, the offence was registered against the accused persons. The criminal proceedings clearly do not arise from a complaint by a private individual.
High Court can exercise jurisdiction under section 195(1) Cr.P.C
24. Elaborating the law to the attending facts, we notice that this Court in Perumal (supra) had observed:
“19. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate Court competent to entertain the appeals either from decrees or sentence passed by the original Court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). The High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo motu whenever the interests of justice demand.”
Quashing the criminal proceedings was unwarranted
34. Applying the above principles to the case at hand, the alleged forgery of evidence in a criminal investigation has resulted in acquittal in the NDPS case and, thereafter, an FIR has been registered, in the circumstance referred to hereinbefore. But then, the interference by the High Court in quashing the criminal proceedings was unwarranted.
Case is restored
35. Therefore, in view of the above the impugned order is set aside. The order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C No 811 of 2014) are restored on the files of Judicial First Class Magistrate-I, Nedumangad.
Party
M.R. Ajayan … Appellant(S) Versus State Of Kerala & Ors. … Respondent(S) – Criminal Appeal No. of 2024 (Arising out of SLP(Crl.)No.4887 of 2024) – 2024 INSC 881- 20th November, 2024
