Anil Kumar Rathore vs State Of U P And 3 Others on 17 January, 2022

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Allahabad High Court

Anil Kumar Rathore vs State Of U P And 3 Others on 17 January, 2022

1. Heard Sri Anoop Trivedi learned Senior Advocate assisted by Sri Vivek Prakash Mishra learned counsel for the petitioner, Sri Dileep Kumar learned Senior Advocate assisted by Ms. Priyanka Midha learned counsel for the respondent no. 4/complainant and Ms. Meena learned A.G.A. for the State.

2. The petitioner herein is seeking for quashing of the first information report dated 25.6.2021 registered as Case Crime No. 466 of 2021, under Sections 147, 148, 419, 195, 452, 323, 504, 506, 427 and 120-B I.P.C., Police Station Anoop Shahar, District Bulandshahar on two grounds:

(i) Firstly that the allegations in the first information report do not constitute commission of any offence within the jurisdiction of the Police Station Anoop Shahar, District Bulandshahar. It is contended that as per the assertions in the first information report, an incident dated 15.6.2021 had occurred at about 5:30 PM inside the residence of the complainant located in New Delhi, addressed at Farm No. 2, Silver Oaklane, Satbari, New Delhi. Both the complainant and the accused persons in the said complaint reside in Delhi. The concerned Officer of the Police Station Anoop Shahar, District Bulandshahar had, thus, illegally registered the FIR, the incident being beyond the area of his territorial jurisdiction.

(ii) Secondly, there is no allegation against the petitioner of his involvement in the incident allegedly occurred on 15.6.2021. No offence at all is made out against the petitioner herein. As regards the allegations of conspiracy to lodge the false criminal case namely Case Crime No. 450 of 2021 at the Police Station Anoop Shahar, District Bulandshahar under Sections 307, 323, 504 and 506 I.P.C., i.e. in reporting the incident dated 10.6.2021, it is contended that the offence as alleged under Section 195 IPC cannot be made out from any of the averments in the FIR. The contention is that the material collected by the Investigating Officer during the course of the investigation of the said criminal case (report) cannot constitute "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872. The "evidence" as defined under Section 3 of the Evidence Act is the oral and documentary evidences filed before the Court upon which the Court has to form its opinion during the course of the trial.

3. The contention is that the statement of the witnesses recorded under Section 161 Cr.P.C. by the Investigating Officer cannot be used for any purpose at any inquiry or trial in respect of any offence. The only exception is that if the witness is called for the prosecution in such inquiry or trial, his said statement or any part of it, if reduced in writing, may be used by the prosecution to contradict the said witness, in such manner as provided under Section 145 of the Indian Evidence Act. To constitute an offence under Section 195 IPC, "the intention to procure conviction" by giving or fabricating false evidence, thereby to cause, or knowing it to be likely, that it will cause any person to be convicted of an offence punishable with imprisonment for life or imprisonment for a term of seven years or upwards, is necessary. The contention is that the production of false evidence before a Court of law intending thereby to cause the accused to be convicted of the aforesaid offence would amount to commission of offence under Section 195 IPC. The crucial condition to constitute offence under Section 195 IPC, according to the petitioner, is whether on the alleged fabricated material, the possibility of conviction was there or not.

It is contended that neither the first information report nor the Case diary maintained under Section 172 Cr.P.C., or the charge sheet/report prepared under Section 173(2) Cr.P.C. constitute evidence within the meaning of Chapter XI of the Indian Penal Code. The statement inserted whether in the police diary or the material otherwise collected by the police officer cannot be used or mean as evidence under the Indian Evidence Act for appreciation during the course of trial. Section 172(2) Cr.P.C. clearly provides that the police diaries of the case sent to the Criminal Court cannot be used as evidence in any enquriy or trial by the Court.

It is, thus, vehemently argued that the element of "intention to procure conviction" on false or fabricated evidence is completely missing in the instant case. The contention, thus, is that the "evidence" as occurring in Section 195 IPC is the evidence led in a Court of law in a judicial proceeding and not otherwise.

4. Reliance is placed on the decision of the Apex Court in Hardeep Singh vs. State of Punjab and others1 to substantiate the above assertions.

It is argued that the specific questions framed by the Apex Court to discern the meaning of the word "evidence" answered therein would come to the rescue of the petitioner herein, inasmuch as, considering the meaning of the word "evidence" under Section 3 of the Evidence Act, it was held therein that the "evidence" whether oral or documentary, means only such evidence as is made before the Court in relation to statement, and as produced before the Court in relation to documents, and not the material collected during investigation as the inquiry by the Court is neither attributable to the investigation nor the prosecution but by the Court itself to find out the truth of the allegations in the FIR. It is contended that the material collected during the investigation before the trial actually constitutes a part of the process of the inquiry. Such facts when recorded during trial are evidence. It is evidence only on the basis whereof trial can be held. The same definition cannot be extended for any material collected during the inquiry/investigation either by the Investigating Officer, the Magistrate or the Court before commencement of the trial. Apart from the evidence recorded during trial, any material that has been collected even by the Court after cognizance is taken and before the trial commences cannot be utilized as evidence recorded during trial. The word "evidence" as defined under Section 3 of the Evidence Act is, thus, the statement of the witnesses that is recorded during trial and the documentary evidence led in accordance with the Evidence Act. Only such evidence and the material on the basis whereof the Court can form an opinion as to the complicity of the accused or some other person who may be connected with the offence, can be said to be evidence, to cause or likely to cause conviction of such person(s) to be convicted of the offence mentioned in Section 195 IPC. The pre-requisite for constituting an offence under Section 195 is that there must exist allegation of giving or fabricating false evidence in the criminal trial, i.e. before a Court of law or else the "intention to procure conviction of offence" on false/fabricated evidence cannot be found or will be lacking completely.

It is urged that as there is no question of recording satisfaction by the Court on the material/evidence (whether oral or documentary) collected by the Investigating Officer, which cannot be read or admitted as evidence in the trial, no offence is made out against the petitioner from the reading of the FIR itself.

Much emphasis has been laid to the discussion to the meaning of word "evidence" under Section 3 of the Indian Evidence Act in paragraphs ''56' to ''68' of the said report (Hardeep Singh1].

5. The Division Bench judgment of this Court in Ashok Pratap Rai vs. State Of U.P. and 3 Others2 has been relied to assert that in the similar facts and circumstances, as in the present case, relying upon the decision in Hardeep Singh1, it was held by this Court that only the material that has come before the Court during inquiry or the trial, which is required to be proved according to the law of evidence can be said to be evidence within the meaning of Section 195 IPC.

It was held therein that the statement of the petitioner therein during a television show to the T.V. correspondent containing references/allegations of commission of offence against the complainant, do not constitute evidence within the meaning of Section 3 of the Evidence Act and hence the allegations in the FIR do not disclose the ingredients of the offence under Section 195 IPC and was liable to be quashed.

Further reliance has been placed on the decision of the Apex Court in Shamshul Kanwar vs. State of U.P.3 to assert that the police diary referred to in Section 172, which the Court may call for, can be used to the limited extent by the Court as well as by the accused as contained in Section 172(3) Cr.P.C., not as evidence in the case, but to aid the Court in such inquiry or trial.

Reliance is placed on the decision of the Madras High Court in Haji Mohammed and others vs. State Rep. By the Inspector of Police, Koradacheri Police Station, Tiruvarur District4 to assert that the entries in the Case diary are not the evidence, nor can they be used by the Court unless the case comes under Section 172(3) of the Code.

Placing the decision of the Apex Court in Maharashtra State Electricity Distribution Company Limited and another vs. Datar Switchgear Limited and others5, it is argued that for constituting an offence under Section 192 IPC in absence of any specific averment demonstrating the role of the accused in the commission of the offence, the alleged fabrication of false evidence or adducing the same in evidence, the ingredients of the offence under Section 192 IPC cannot be said to exist. The allegations in the first information report or the complaint in such case, taken at its face value and even assuming to be correct in its entirety, do not constitute the offence alleged.

The decision of the Apex Court in Perumal vs. Janaki6 has been placed before us to submit that the question before the Apex Court was as to whether a police officer filing a charge sheet can be said to have made any statement on oath or is bound by any express provision of law to state the truth so as to try him for offence under Section 193 of the IPC. The Apex Court therein was dealing with the complaint under Section 190 of the Cr.P.C. filed before the Judicial Magistrate praying for trial of the police officer for an offence under Section 193 of the IPC. The Judicial Magistrate had rejected the complaint as not maintainable in view of Sections 195 and 340 Cr.P.C. The revision filed against the said order was also dismissed by the High Court.

6. We may note at this juncture that while dealing with the same, the Apex Court had observed the question that whether the statement made by the police officer in a charge sheet amounts to a declaration upon any subject within the meaning of the clause "being bound by law to make a declaration upon any subject" occurring under Section 191 IPC required further examination. Further a police officer filing a charge sheet does not make any statement on oath nor is bound by any express provision of law to state the truth though being a public servant he is obliged to act in good faith. Considering the provisions of Section 211 of the IPC as also the language of Section 195 Cr.P.C., it was held that the conclusion drawn by the learned Magistrate in dismissing the complaint was justified for the complaint had not been filed by the person contemplated under Section 195 Cr.P.C. However, it was observed that the High Court being Constitutional Court has been invested with the powers of superintendence over all Courts within its territorial limits. It can certainly exercise jurisdiction under Section 195(1) Cr.P.C. As the allegations of the appellant was that he had been prosecuted on the basis of palpably false statements and further that the respondent (police officer) did so for extraneous consideration, it was opined that it was an appropriate case where the High Court ought to have exercised the jurisdiction under Section 195 Cr.P.C. The appeal was, thus, allowed. The matter was remitted back to the High Court for further appropriate course of action to initiate proceedings against the respondent/police officer on the basis of the complaint of the appellant therein, in accordance with law.

The decision of the Apex Court in Pandurang Chandrakant Mhatre & Others vs. State of Maharashtra7 has been placed before us to contend that the legal position that the first information report is not a substantive piece of evidence and that it can be used with regard to testimony of the witnesses who depose in respect of the incident, is fairly well settled.

7. Placing the above decisions, it is vehemently argued by the learned Senior Counsel for the petitioner that only an act of giving false evidence or fabricating false evidence in a judicial proceeding, with the intention to procure conviction for offence, as per the language employed in Section 195, may lead to conviction for the offence under the said section. The investigation which is preliminary proceedings before the matter is brought in a Court of law, cannot be brought within the meaning of the judicial proceeding and the 'evidence' led before the Investigating Officer would not fall with the meaning of "evidence" under Section 195 IPC. The allegations in the first information report taken at its face value and even if accepted in their entirety do not constitute the offence as alleged under Section 195 IPC and as such the impugned FIR is liable to be quashed.

8. Having heard learned counsels for the parties and perused the record, it may be noted that the first information report lodged on 25.6.2021 contains assertions that in relation to a criminal case namely Case Crime No. 450 of 2021 registered under Sections 307, 323, 504 and 506 IPC at Police Station Anoop Shahar, District Bulandshahar on 10.6.2021, some unknown persons had entered in the house of the complainant on 15.6.2021 at about 5:30 PM, impersonating them as the police officers for making investigation in the said criminal case. Out of those, one named accused Satendra Kumar Bhati was impersonating himself as Deputy Superintendent of Police (D.S.P.). Those persons had misbehaved and assaulted the family members of the complainant and also destroyed their household goods which has caused loss of more than two lacs.

There are six named accused in the FIR which has been lodged against some unknown persons as well.

Another part of the allegation in the first information report is that six named accused in the first information report had conspired to lodge a first information report namely Case No. 450 of 2021 at Police Station Anoop Shahar, District Bulandshahar on false evidence with the intention to cause conviction of the complainant for life imprisonment. The said first information report was lodged as Case Crime No. 466 of 2021 on 25.6.2021, under Sections 147, 148, 419, 195, 452, 323, 504, 506, 427 and 120-B I.P.C., Police Station Anoop Shahar, District Bulandshahar.

The petitioner before us is one of the named accused, Anil Kumar Rathore.

9. From the careful reading of the FIR, it is evident that the allegations against the petitioner herein is of committing an offence of criminal conspiracy with the other accused to lodge a false report so as to cause the conviction of the complainant for an offence punishable with imprisonment for life. The first information report in question, therefore, cannot be said to be only the information of the incident occurred on 15.6.2021. With regard to the petitioner herein, the allegations of commission of offence under Section 195 readwith Section 120-B of the IPC are clear and categorical therein.

As the Case Crime No. 450 of 2021 was registered in the Police Station Anoop Shahar, District Bulandshahar and the allegations in the first information report are of offence of criminal conspiracy committed by the petitioner, a named accused in lodging the said report, the contention of the learned Senior Counsel for the petitioner with respect to lack of territorial jurisdiction of the police station concerned, is found misplaced. Even otherwise, the first information report of an offence committed cannot be quashed on the ground of lack of jurisdiction of the police station concerned. It must be left to the wisdom of the police officer to decide as to whether he has jurisdiction to proceed with the investigation or not. The question as to whether the offence alleged has been committed within the area of his territorial jurisdiction can very well be looked into by the Investigating Officer.

10. The first limb of argument of the learned Senior Counsel for the petitioner that the first information report was only an information with regard to the incident occurred on 15.6.2021 at the residence of the complainant in New Delhi and the police officer at Police Station Anoop Shahar, District Bulandshahar lacked jurisdiction to lodge the said report, therefore, is turned down.

11. As regards the second argument pertaining to the quashing of the first information report on the plea that it does not disclose commission of the offence under Section 195 IPC, we would deliberate the matter as under.

12. To deal with the submission of the learned Senior Counsel for the petitioner that even if the allegations in the first information report are taken at its face value and accepted in their entirety, do not constitute the offence as alleged under Section 195 IPC for the reason that any statement or documentary material collected/produced during the course of investigation before a police officer would not constitute "evidence" within the meaning of the Indian Evidence Act and Section 195 IPC, it would be apposite to first go through the relevant provisions as contained in Chapter XI of the Indian Penal Code.

For ready reference, Sections 191, 192, 193 and 195 relevant for our purposes are reproduced as under:-

"191. Giving false evidence:- Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1- A statement is within the meaning of this section, whether it is made verbally or otherwise.

Explanation 2- A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

192. Fabricating false evidence:-Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence.

193. Punishment for 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 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; 101[***] 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.

Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

Explanation 3- An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a state of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence.

195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment:- Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which [by the law for the time being in force in [India]] is not capital, but punishable with [imprisonment for life], or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished."

Chapter XI of the Indian Penal Code constitutes offences pertaining to false evidence and offences against public justice. Section 191 IPC defines as to what would constitute "giving false evidence" in a case. Section 192 provides as to what would constitute "fabricating false evidence". Section 192 provides that whoever causes any circumstance to exist or makes any document (or electronic record) or makes any false entry in any book or record (or electronic record) containing a false statement, intending that such circumstance, false statement or false entry may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, and that such circumstance, false statement or false entry, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to fabricate false evidence.

The reading of Section 192 IPC makes it clear that any document containing a false statement appearing in evidence lead by any person, in a proceeding taken by law before a public servant, which may cause any person in such proceeding who is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such a proceeding, is said to fabricate false evidence.

The phrase "in a proceeding taken by law before a public servant as such" has been placed before us by the learned Senior Advocate for the respondent to contend that any false evidence led before the Investigating Officer in a criminal case would fall within the meaning of fabricating false evidence under Section 192 IPC.

13. To appreciate the said argument, we have to look further into provisions of Sections 193 and 195 (relevant for the purpose of this case).

Section 193 provides punishment for giving false evidence or fabricating false evidence. It provides punishment of two descriptions for such an evidence being used; (i) in any stage of the judicial proceeding, which is imprisonment for a term extending to seven years with fine, (ii) in any other case, punishment with imprisonment for a term upto three years with fine. Thus, the gravity of offence of fabricating false evidence and giving false evidence depends on the nature of the proceeding in which it has been used or recorded.

Explanations (1) to (3) further explains the words "judicial proceeding". The phrase "an investigation directed by law preliminary to a proceeding before a Court of Justice" in Explanation (2) to Section 193 IPC has been placed before us by Sri Dileep Kumar learned Senior Advocate for the respondent to assert that an investigation made by the police officer under Section 156 Cr.P.C. after lodging of the first information report under Section 154, is an investigation directed by law and being preliminary to a proceeding before a Court of law, it is one of the stages of a judicial proceeding. The words "though that investigation may not take place before a Court of Justice" further clarifies that the investigation made by a police officer is included as a stage of a judicial proceeding as per Explanation (2) to Section 193 IPC.

14. The contention, thus, is that any false or fabricated evidence placed before a police officer during the course of investigation would make the person leading such evidence guilty of offence under Section 193, (first part) of punishment. It is contended that Sections 191, 192 and 193 prescribe as to what constitute offence of giving false evidence or fabricating false evidence in a judicial or any other proceeding and punishment for the said offence with varying gravity. Section 195 IPC is only an aggravated form of the offence under Section 193. Section 195 is, thus, similar to Section 193 except the gravity of the offence in respect of which fabrication/purgery is committed.

It is contended that if a complainant has lead false evidence before a police officer during the course of investigation with the intention to procure the conviction of a person for an offence which is punishable with imprisonment for life or imprisonment for a term of seven years or upwards, he shall be liable to be punished for the same offence and investigation for commission of such an offence is to be processed when alleged.

15. To deal with the said submissions, having noted the language employed in Sections 191, 192, 193 and 195 IPC, the question for consideration before us is whether any evidence led by the complainant or any other person before the police officer during the course of investigation can be said to be an evidence led in a stage of a judicial proceeding within the meaning of Section 193 Explanation (2) IPC. In other words, whether the documents furnished before a police officer in the police investigation alleged to be fabricated false evidence can be made basis to frame charge under Section 193 IPC or 194 and 195 IPC depending upon the nature of the proceeding and gravity of the offence in which such an evidence is lead.

Under the Code (Indian Penal Code), the words "judicial proceeding" has not been defined, however, the words "Judge", "Court of Justice", "Public servant" have been defined in Sections 19, 20 and 21 of the Indian Penal Code; respectively. The words "judicial proceeding" has been defined in Section 2(i) Cr.P.C. as including any judicial proceeding in the course of which evidence is or may be legally taken on oath. The 'judicial proceeding' within the meaning of Cr.P.C., thus, does not include a proceeding of investigation before a police officer as the evidence before a police officer is not taken on oath.

The illustration to Explanation (2) of Section 193 explains further that any inquiry before a Magistrate preparatory to commitment for trial is a stage of a judicial proceeding and if someone makes a statement on oath which he knows to be false, he can be punished for giving false evidence under Section 193.

16. In Cr.P.C., the power and procedure of police investigation and magisterial inquiry are provided in different Chapters. The police investigation starts with lodging of the first information report of a cognizable offence whereupon a police officer is under duty to investigate. There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities in a matter. Where first information report is lodged, magisterial inquiry would commence upon submission of the police report of commission of offence.

Chapter XIV in Cr.P.C. deals with the magisterial inquiry wherein a Magistrate is empowered to take cognizance of any offence with or without a police report, i.e. suo motu or on receipt of information or complaint of facts which constitute such offence.

During the course of police investigation under Chapter XII, the police officer may record statements of witnesses and collect such material in order to find out the truth of the allegations or commission of offence. The case Diary under Section 172 Cr.P.C. is to be maintained in the said process. On completion of the investigation, the police officer is obliged to submit a report containing all necessary documents in accordance with Section 173 Cr.P.C.

17. It may be noteworthy that neither the statement recorded by the police officer under Section 161 nor the police Diary prepared under Section 172 of Chapter XII can be read in evidence before a Court of law. Even a statement under Section 164 Cr.P.C. cannot be read as a substantive evidence and has only corroborative value. The statement under Section 161 Cr.P.C. can only be used during the course of the examination of the witnesses to contradict them. The case Diary under Section 172 Cr.P.C. can be called by the Court only to refresh the memory of the police officer who have maintained it or for the purpose of contradicting such police officer.

18. Under the Indian Penal Code (IPC), a "judicial proceeding" be considered to be a proceeding before a 'Judge' as defined in Section 19 which excludes a Magistrate holding an inquiry preparatory to commitment for trial to another Court, in respect of a charge on which he has power only to commit. The words "Court of Justice" denote a "Judge" as defined under Section 19 and include a body of Judge which is empowered by law to act judicially as a body. The phrase in Explanation (2) to Section 193 "An investigation directed by law preliminary to a proceeding before a Court of Justice", however, include a magisterial inquiry preparatory to commitment as an inquiry directed by law preparatory to the trial in view of the 'illustration' attached to it. The effect of the 'illustration' is to make a magisterial inquiry preparatory to commitment, a stage of a judicial proceeding.

To hold that a police investigation is a stage of a judicial proceeding would lead to anomaly for the reason that a Magistrate trying a warrant case is a 'Court of Justice' within the meaning of Section 20 IPC whereas a Magistrate holding an inquiry preparatory to commitment is not even a 'Judge' in view of Section 19, illustration (d). An investigation preparatory to a trial, by a Magistrate, would be a stage of a judicial inquiry in view of illustration to Explanation (2) to Section 193 IPC, while a police investigation preparatory to a magisterial inquiry for commitment would not.

19. Another reason to say so is that there is no direction of law that the police investigation should precede a trial. When a Magistrate takes cognizance on a complaint or suo motu proceeds to make an inquiry to take cognizance of an offence reported/coming to his knowledge, often there is no police investigation. Section 193, thus, requires something more. It is not enough that the police investigation does as a matter of fact precede a trial. There must be an express direction by law, just as under Explanation (3) there must be an express direction by a Court of Justice, to make the investigation within the meaning of Explanation (2). A statement made to a police officer under Section 161 of the Code or 161 Cr.P.C. or a statement made before a Magistrate under Section 164 of the Code cannot form the basis of framing a charge, much less of conviction under Section 193 IPC, though the person making the statements is under an obligation to state the truth on both the occasions.

20. The scheme of the Code of Criminal Procedure makes a clear distinction between the stage of police investigation and that of judicial proceedings by way of inquiry or trial. There is a clear distinction between two classes of statements also. This difference is because of the circumstances and surroundings under which the two sets of statements are recorded before the Police Officer and the Magistrate. This may be taken to be recognition by the Legislature of the harsh realities of the situation, that the statements recorded at the stage of police investigation are not permitted to be treated as evidence at the trial under the Code of Criminal Procedure and the Indian Evidence Act.

In a case where police report of commission of offence is lodged under Section 154 Cr.P.C., the Court's function begins when a report is submitted before it under Section 173(2) Cr.P.C. and not until then. On a fair interpretation of the Section 193 IPC, to hold that a statement, which is not 'evidence' in a judicial proceeding, can be made basis to frame a charge for offence under the said Section, would result in travesty of justice.

21. Similarly any documentary or electronic evidence produced before a police officer alleged to contain a false statement, false entry cannot be made basis for conviction for an offence under Section 193 IPC, unless and until such an evidence is produced before a Court of law during the course of inquiry or trial and is proved or exhibited as a documentary evidence.

The reason being that the police report is only a fact finding report and even the Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit by exercising his power under Section 190(1)(b) Cr.P.C. It is open to the Magistrate to act under Section 200 or 2002 also for taking cognizance of a case. [Reference Minu Kumari and another vs. State of Bihar and others8] We may further note that in Hardeep Singh1, the question for consideration before the Apex Court was of interpretation of word "evidence" used in Section 319(1) Cr.P.C.:- whether the word "evidence" used in the said section includes the evidence collected during investigation or is limited to the evidence recorded during trial". While answering the said question, the meaning of "evidence" under Section 3 of the Indian Evidence Act and the scope of power of the Code under Section 319 Cr.P.C. has been considered to hold that the word "evidence" as used in Section 319 Cr.P.C. has to be understood in its wider sense to include evidence both at the stage of trial and even at the stage of inquiry. It was, however, held that the inquiry would be the inquiry conducted by the Court before commencement of trial. It was held that any material that has been received by the Court after cognizance is taken and before trial commences apart from the evidence recorded during trial, can be utilized to invoke the powers under Section 319 of the Cr.P.C. It was, thus, held that the evidence within the meaning of Section 319 Cr.P.C. has to be broadly understood and not literally, i.e. as evidence brought during a trial. Section 319(1) Cr.P.C. empowers the courts to proceed against other persons who appears to be guilty of offence though not an accused before the Court. Section 319 Cr.P.C. uses both terms, "inquiry" and "trial". It was observed that trial is distinct from an inquiry and must necessarily succeed it. The inquiry must be a forerunner to the trial. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge sheet for the purpose of trying the accused.

The Apex Court has noted the observations in Raghubans Dubey vs. State of Bihar9 that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence, it is his duty to find out who the offenders really are and once he 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 those persons. The summoning of the additional accused is part of the proceeding initiated by Magistrate taking cognizance of an offence. It is, this inquiry which has been defined as "inquiry" under Section 2(g) of the Code of Criminal Procedure. The purpose of the trial, however, is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf.

The Apex Court further held that the 'inquiry' within the meaning of Section 2(g) Cr.P.C. clearly envisage 'inquiry before the actual commencement of the trial', and is an act conducted under Cr.P.C. by the Magistrate or the Court. The word "inquiry" is not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the Court on filing of the charge sheet. The Court can, thereafter, proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial wherein the Court proceeding commences on cognizance being taken with the determination of issues adjudging the guilt or innocence of the person.

The view taken by us to interpret the words "an investigation directed by law preliminary to a proceeding before a Court of Justice" occurring in Explanation (2) to Section 193 IPC, thus, is getting support from the above observations in Hardeep Singh1.

22. In the instant case, the question whether the documents furnished before a police officer in the police investigation alleged to be fabricated false evidence can be made basis to frame charge under Section 193 IPC or 194 or 195 IPC posed by us, therefore, is to be answered in 'Negative'.

23. The issue, however, left is as to whether the first information report, in the instant case, can be quashed on the ground that no offence under Section 195 IPC as alleged therein is made out as in the Case Crime No. 450 of 2021 the allegations that fabricated false evidence had been lead was neither in the inquiry by the Magistrate nor trial by the Court, i.e. not in any stage of the judicial proceeding.

24. To answer this, we may note that the first information report contains information of commission of offence other than Section 195 IPC which are Cognizable in nature, which has been lodged against six named accused and some unknown persons as well. The allegations are of the incident occurred prior to 15.6.2021 and on the said date. Without letting the investigation to proceed, it cannot be said that no other offence can be said to have been made out against the petitioner, i.e. other than Section 195 IPC readwith Section 120B. It would not be possible for the Court to split the first information report where named and unnamed accused have also been implicated for offences other than Section 195 IPC, to state that no other offence is made out against the petitioner herein.

25. As regards issue pertaining to the jurisdiction of the police station concerned to investigate the incident occurred on 15.6.2021, the first information report cannot be quashed on this ground. It is well settled that a first information report is only an initiation to move the machinery to investigate into allegation of commission of a cognizable offence. It is well within the jurisdiction of the police officer concerned to make an enquiry and to transfer the investigation to the appropriate police station of competent jurisdiction.

26. At this stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. It has been held by the Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others10 that there is a well defined and well demarcated function in the field of investigation and its subsequent adjudication. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. Even if the information does not give full details regarding the above noted matters, the Investigating Officer is not absolved of his duty to investigate the case and discover the true facts, if he can. The Court would not interfere with the investigation or during the course of investigation which would mean from the time of 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) Cr.P.C., this field being exclusively reserved for the investigating agency. The principles of law in the matter of scope of interference by the Court in the police investigation as laid down in M/s Neeharika Infrastructure Pvt. Ltd.10 are:-

"10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of King Emperor vs. Khawaja Nazir Ahmad (AIR 1945 PC 18), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the ''rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR".

27. The only exceptions are where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go 'on', or where non-interference would result in miscarriage of justice the Court may interfere at the stage of investigation of offence. Regard being had to the parameters of quashing the first information report laid down by the Apex Court in M/s Neeharika Infrastructure Pvt. Ltd.10, noticing its previous judgments in R.P. Kapur vs. State of Punjab11 and State of Haryana vs. Bhajanlal12, we find that no case is made out for quashing of the present FIR as it cannot be said that the FIR does not disclose commission of any cognizable offence or offence of any kind.

The relief of quashing of the first information report, therefore, deserves to be refused.

The writ petition is, accordingly, dismissed.

No order as to costs.

	                          [Sadhna Rani (Thakur),J.]        (Sunita Agarwal,J.)
 
Order Date :- 17.1.2022
 
Brijesh

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