The Allahabad High Court has said in one of its orders that 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.
The Division Bench of Justice Sunita Agarwal and Justice Sadhna Rani (Thakur) passed this order, while hearing a petition filed by Anil Kumar Rathore.
The petitioner sought quashing of the first information report dated June 25, 2021 registered under Sections 147, 148, 419, 195, 452, 323, 504, 506, 427 and 120-B IPC, 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 offense within the jurisdiction of the Police Station Anoop Shahar, District Bulandshahr. It is contended that as per the assertions in the first information report, an incident dated June 15, 2021 had occurred at about 5:30 PM inside the residence of the complainant located at Farm Silver Oaklane, Satbari, New Delhi. Both the complainant and the accused 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 that allegedly occurred on June 15, 2021. No offense at all is made out against the petitioner herein. As regards the allegations of conspiracy to lodge the false criminal case namely case at the Police Station Anoop Shahar, District Bulandshahar under Sections 307, 323, 504 and 506 IPC, in reporting the incident dated June 10, 2021, it is contended that the offense 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 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 evidence filed before the Court, upon which the Court has to form its opinion during the course of the trial.
The contention is that the statement of the witnesses recorded under Section 161 CrPC by the Investigating Officer cannot be used for any purpose at any inquiry or trial in respect of any offense. 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 offense 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 offense 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 offense would amount to commission of offense under Section 195 IPC. The crucial condition to constitute offense 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 CrPC, nor the charge sheet/report prepared under Section 173(2) CrPC 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) CrPC clearly provides that the police diaries of the case sent to the Criminal Court cannot be used as evidence in any enquiry 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 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.
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.
The Court said that, 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 CrPC, 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 CrPC.
It is vehemently argued by the 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 offense, as per the language employed in Section 195, may lead to conviction for the offense 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 within the meaning of “evidence” under Section 195 IPC.
“Having heard counsels for the parties and perused the record, it may be noted that the first information report lodged on June 25, 2021 contains assertions that in relation to a criminal case registered under Sections 307, 323, 504 and 506 IPC at Police Station Anoop Shahar, District Bulandshahar on June 10, 2021, some unknown persons had entered in the house of the complainant on June 15, 2021 at about 5:30 PM, impersonating them as the police officers for making investigation in the said criminal case”, the court observed.
The Court further stated that, in this 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’.
To answer this, the Court noted that the first information report contains information of commission of offense 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 that the incident occurred prior to June 15, 2021 and on the said date. Without letting the investigation proceed, it cannot be said that no other offense can be said to have been made out against the petitioner, i.e other than Section 195 IPC read with 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 offenses other than Section 195 IPC, to state that no other offense is made out against the petitioner herein.
The Court stated that the only 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, noticing its previous judgments in R.P Kapur vs. State of Punjab and State of Haryana vs. Bhajanlal, we find that no case is made out for quashing of the FIR as it cannot be said that the FIR does not disclose commission of any cognizable offense or offense of any kind. The relief of quashing of the first information report, therefore, deserves to be refused,” the court observed while dismissing the petition.