Dr. S. Dutt V. State Of Uttar Pradesh
 INSC 159 (18 August 1965)
18/08/1965 HIDAYATULLAH, M.
CITATION: 1966 AIR 523 1966 SCR (1) 493
Code of Criminal Procedure (Act 5 of 1898),
s. 195-Sanction of Court for prosecution for offences committed during judicial
proceedings Court refusing sanction in respect of alleged offence under s. 193
I.P.C. Prosecution on same facts for offences under s. 465 and s. 471 I.P.C.
where no sanction required--Whether proper.
Indian Penal Code (Act 45 of 1860), ss. 193,
196 and 471 Ingredients of-Meaning of dishonestly, 'fraudulently' and
The appellant was examined as a forensic
expert in a sessions trial. He claimed to hold a diploma in criminology which
he produced before the Sessions Judge on being asked to do so. On the basis of
the appellant's testimony the accused were acquitted. On the allegation that
the diploma produced by the appellant was a forged one the prosecution applied
to the Sessions Judge under s. 195 of the Code of Criminal Procedure for
prosecution of the appellant under s. 193 of the Indian Penal code. The
application was rejected by the Sessions Judge. Subsequently on a report being
lodged with the police the appellant was charge-sheeted for offences under ss,
465 and 471 of the Penal Code. The appellant objected it his trial for these
offences that he could not be legally prosecuted as the facts disclosed
offences under ss. 193 and 196 of the Indian penal code and not under ss. 465
and 471 with which he was charged. He alleged that the prosecution was
attempting to evade the provisions of s. 195 of he Code of Criminal Procedure.
The trial court having overruled the appellant's objections, he went in
revision to the High Court and having failed there as well, he appealed to this
Court by special leave.
HELD : (i) The evidence did not disclose any
offences under ss. 465 and 471, but rather offences under s. 193 and 196 I.P.C.
The distinction between sections 465 and 471 on the one hand and 193 and 196 on
the other is that the gist of the offence in the first group is the making of a
false document and the gist of the offences in the second group is the
procuring of false circumstances or the making of a document containing a false
statement so that a judicial officer may form a wrong opinion in a judicial
proceeding on the faith of the false evidence. Another important difference is
that whereas s. 471 requires a user to be either fraudulent, dishonest or both,
s. 196 is satisfied if the user is corrupt. it was not alleged that the
appellant himself forged the diploma and therefore S. 465 was not -attracted.
For s. 471 it is necessary that the forged document is 'used' by the accused
'dishonestly' and 'fraudulently'. Even if production of the 'document at the be
best of the court can amount to 'using' the document, it could not be said to
have been used 'dishonestly' as the appellant did not intend to cause wrongful
gain to himself or wrongful loss to another. Nor could he be said to have used
it 'fraudulently' within the meaning, of s. 25 of the Penal Code, that is to
say, with "intent to defraud", inasmuch as his intention in producing
the certificate was not to cause any one to act to his disadvantage. since he
only complied with the order of the Court. [499 H-500 D; 503 B-E] 494 The
prosecution of the appellant for offences under ss.
465/471 I.P.C. could not therefore be allowed
[504 A-B] Assistant Sessions Judge North
Arcot v. Ramammal, I.L.R. 36 Mad. 387, Ma Ain Lon v. Ma On Nu, A.I.R. 
Rangoon 191 and Walham v. Director of Public Prosecutions,  A.C.
103 and In re London and Globe Finance Corpn.
Ltd., [1903) 1 Ch. 728, referred to.
(ii) If the appellant gave false evidence in
court or if he fabricated false evidence the offence under s. 193 was clearly
committed. Again when he used his diploma as genuine his conduct was 'corrupt'
within the meaning of that word as used in s. 196. That section includes
conduct which though neither fraudulent nor dishonest is otherwise blameworthy
or improper. [501 A-B; 500 H] Emperor v. Rana Nana, I.L.R. 46 Bom. 317 and
Bobkhranjan Gupta v. The King, I.L.R.  2 Cal, 440, referred to.
The evidence thus disclosed that the
appellant committed offences under ss. 193 and 196 of the Penal Code. For
prosecution under these sections, the sanction of the Court in writing was
necessary. In the lessor offences under ss.
465 and 471 no such sanction was necessary.
It is obvious that the lesser offences were chosen to bypass the Sessions Judge
who had earlier decided that the appellant should not be prosecuted for
perjury. Such a device is not to be commended. [503 H] Nur-ul-Huda v. State of
West Bengal,  S.C.R. 836, reaffirmed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 90 of 1965.
Appeal by special leave from the judgment and
order dated February 12, 1965 of the Allahabad High Court in Criminal Revision
No. 260 of 1963.
A. S. R. Chari, A. N. Sinha and A. K. Nag,
for the appellant.
K. K. Jain and O. P. Rana, for the
The Judgment of the Court was delivered by
Hidayatullah, J. Dr. S. Dutt who appeals to this Court by special leave against
the judgment and order of Mr. Justice Misra of the Allahabad High Court
(Lucknow Bench) dated February 12, 1965 was examined as an expert witness by
the defence in a Sessions trial (State v. Matadin and Ors.-S.T.
No. 60 of 1957) in the Court of Additional
Sessions Judge, Hardoi. Dr. Dutt claimed to hold a diploma from the Imperial
College of Science and Technology, London to the effect that he had specialised
in the subject of criminology. He was cross-examined inter alia about this
claim by the District Government counsel who was assisted by one Mr. Shyam
Narain, Deputy Superintendent, Police (C.I.D.) Lucknow. Mr. Shyam Narain
earlier had deposed himself as an expert witness for the prosecution. Dr.
Dutt's testimony ran counter to the testimony of Mr. Shyam Narain and the
credentials of Dr. Dutt were challenged. The Judge asked Dr. Dutt to produce
all his academic diplomas and certifi495 cates for his inspection. Dr. Dutt
produced the aforesaid diploma and it was taken on file as Ex. P-71 to-ether
with a statement which was marked Ex. P-72. The Sessions Judge pronounced
judgment on October 29, 1957 acquitting Matadin and the other accused. He
passed strictures on the prosecution and did not accept the evidence of Mr.
Shyam Narain. Government did not appeal against the acquittal and that matter
On November 12, 1957 prosecution applied to
the Session Judge under s. 195 of the Code of Criminal Procedure for the
prosecution of Dr. Dutt under s. 193 of the Indian Penal Code. It was stated in
the application that "the defence witness No. 3 Dr. S. Dutt has committed
forgery of certain diploma produced in this Hon'ble Court during the course of
his evidence and he has used these forged documents as genuine". This
application was rejected on November 12, 1957. Two days later Mr. Shyam Narain
lodged a report at Police Station, Hardoi alleging that Dr. Dutt had committed
an offence under s. 466/477 (subsequently chanced to s. 465/471) of the Indian
Penal Code in the Court of the Additional Sessions Judge, Hardoi while giving
evidence in Sessions trial State v. Matadin and others. The first information
report stated that the diploma of the Imperial College of Science and
Technology, London and the statement produced by Dr. Dutt were forged and that
Dr. Dutt had "used them in the court with a bad motive, passing them as
genuine". On October 26, 1958 a charge-sheet under s. 465/471, Indian
Penal Code was filed against Dr. Dutt in the Court of the Judicial Officer III,
Hardoi by the C.I.D.
The case went before the Additional District
Magistrate (Judicial) Hardoi on transfer and at the commencement of the trial
Dr. Dutt objected that he could not be legally prosecuted as the alleged facts
disclosed an offence under s. 193, Indian Penal Code and a complaint in writing
of the court was required under s. 195 of the Code of Criminal Procedure before
cognizance could be taken. Dr. Dutt also contended that ss. 465/471 did not
apply to the alleged facts and that the prosecution was attempting to evade the
provisions of s. 195 of the Code of Criminal Procedure.
During arguments on his petition Dr. Dutt
also claimed that s. 196 and not s. 471 of the Indian Penal Code applied to the
facts of the case and that even that offence required that the procedure of s.
195 should have been gone through.
The prosecution, on the other hand, contended
that Dr. Dutt was being prosecuted for forgery of the diploma and for using the
said 496 forged document and, therefore, the offence fell within ss.
465/ 471 of the Indian Penal Code. The
Additional District Magistrate (Judicial) rejected the contentions of Dr. Dutt
and held that there was no bar to the trial under s. 465/471, Indian Penal
Code. Dr. Dutt filed revisions against the order in the Court of Sessions and
in the High Court but without success. The order of the High Court was
pronounced on February 12, 1965 and the present appeal is against that order.
Section 195 of the Code of Criminal Procedure
which brings in the question of jurisdiction in the case deals with
prosecutions for contempt of lawful authority of public servants and provides
inter alia that prosecutions for certain offences against public justice shall
not be taken cognizance of except on the complaint in writing of a court before
which the offence is committed or of Some other court to which that court is
subordinate. These offences are enumerated in the section and among them are
ss. 193 to 196, 199 and 200 of the Indian Penal Code. Section 195 further
provides that prosecution for any offence of forgery described in s. 463 or of
using a forged document as genuine punishable under s. 471, s. 475 or s. 476 of
the Indian Penal Code in respect of a document produced or given in evidence in
a court by a party requires a complaint in writing of the court. The gist of
the provision is that offences of for-cry of a document as described in s. 463
I.P.C. and of using such forged documents, if produced or given in evidence by
a person other than a party to a proceeding in a court, do not require a
complaint in writing of the court concerned, but Prosecution in respect of
offences under ss. 193 to 196, 199 and 200 (among others) committed in a
judicial proceeding by a person (Whether a party or not) requires a complaint
in writing of the court before which the offence is committed or of sonic other
court to which such court is subordinate. It is this difference which has
apparently induced the selection of ss. 465/471 rather than ss. 193/196 of the
Indian Penal Code.
The former do not require the complaint by
the court but the letter do, and this is the main point of controversy before
Mr. Chari for Dr. Dutt first draws attention
to certain observations of this Court in Basir-ul-Huq and Others v. The State
of West Bengal and Nur-ul-Huda v. The State of West Bengal(1), where it is
observed that s. 195 of the Code of Criminal Procedure must not be evaded if
the bar created by it stands in the way (1)  S.C.R. 836 at 842.
497 of the prosecution. The observations of
this Court are as follows :"Though, in our judgment, section 195 does not
bar the trial of an accused person for a distinct offence disclosed by the same
facts and which is not included within the ambit of that section, it has also
to be borne in mind that the provisions of that section cannot be evaded by
resorting to devices or camouflages. The test whether there -is evasion of the
section or not is whether the facts disclose primarily and essentially an
offence for which a complaint of the court or of the public servant is
required. In other words, the provisions of the section cannot be evaded by the
devices of charging a person with an offence to which that section does not
apply and then convicting him of an offence to which it does, upon the ground
that such latter offence is a minor offence of the same character. or by
describing the offence as being on punishable some other section of the Indian
Penal though in truth and substance the offence falls in the category of
sections mentioned in section 195, Criminal Procedure Code. Merely by changing
the garb or label of an offence which is essentially an offence covered by the
provisions of section 195 prosecution for such an offence cannot be taken
cognizance of by misdescribing it or by putting a wrong label on it." Mr.
Chari concedes that s. 195(1) (c) of the Code of criminal Procedure would not
bar the present prosecution of Dr. Dutt if the offence fell within s. 465/471
of the Indian Penal Code, because the procedure contemplates a complaint by the
court only if the offence is committed by a party.
His contention, however, is that the offence,
if any, was not under s. 465 nor under s. 471, but one under s. 193 or 196,
Indian Penal Code for which the procedure of s. 195 of the Code of Criminal
Procedure was imperative. It is, therefore, necessary to examine the ambit of
the provisions which are set in opposition by the parties.
Sections 465 and 471 occur in Chapter XVIII
-of the Indian Penal Code which deals with offences relating to documents and
to Property Marks and consists of thirty-one sections.
It is divided into three parts. We are not
concerned with the last two parts which deal with counterfeiting of Property
and other Marks and currency-notes and Bank-notes.
The first part deals inter alia with forgery,
making of false documents and their use.
498 Sections 193 and 196 occur in Chapter XI
which deals with false evidence and offences against public justice. Section
193 punishes the giving or fabricating of false evidence and section 196
punishes the using of evidence known to be false. Which of these two groups of
sections applies here is the question; on that depends whether the court had
jurisdiction to take cognizance of the case.
Section 463 of the Penal Code defines the
offence of forgery in these words: "463. Whoever makes any false document
or part of a document with intent to cause damage or injury, to the public or
to any person, or to support any claim or title, or to cause any person to part
with property, or to enter into any express or implied contract or with intent
to commit fraud or that fraud may be committed, commits forgery." Section
464 next defines the expression "makes any false document". It is not
necessary to quote it her.-,. It is divided into three clauses. The first
clause embraces cases of dishonest and fraudulent making, signing, sealing and
executing, of a document or a part of document with the intention of causing it
to be believed that it is made etc.
by another person or by his authority. The
second clause deals with cases of dishonest or fraudulent alteration of a
document in a material part after its execution and the third with cases of
causing dishonestly or fraudulently any person who is insane or drunk to
execute or alter a document or by practicing deceit on him.
It is not the case of the prosecution here
that Dr. Dutt forged the diploma personally in any one of The three ways mentioned
in the section but it is the case that the diploma was a forged and. false
document and he used it as genuine.
Section 465 punishes the offence of forgery
with imprisonment which may extend to two years or with fine, or with both.
Section 471 punishes the using of a forged document as genuine. It provides
"471. Whoever fraudulently or dishonestly uses as genuine any document
which he knows or has reason to believe to be a forged document, shall be
punished in the same manner as if he had forged such document".
It is contended that Dr. Dutt fraudulently or
dishonestly used the diploma as genuine which he knew or had reason to believe
to be a forged document and thus committed an offence under ss. 465/471, Indian
499 Before we analyse these sections in
relation to Dr. Dutt's conduct we may refer to the other group of sections on
which Mr. Chari relies. Chapter XI, where they occur, is headed "Of False
Evidence and Offences against Public Justice".
Section 191 defines the offence of giving false
evidence which is known as perjury in English Law. It consists, speaking
generally, of the making, while on oath, of a statement which is known to be
false or believed to be false or not believed to be true. In this sense Dr.
Dutt, when he claimed to hold a diploma, if he did not, may be said to have
given false evidence. Section 192 then defines compendiously the offence of
fabricating false evidence.
The portion which Mr. Chari claims applies
here may be set out :
"Whoever causes any circumstance to
or makes any document containing a false
statement intending that such circumstance or false statement may appear in
evidence in a judicial proceeding ........ and that such circumstance 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." The offence of intentionally giving false
-evidence described in s. 191 or of fabricating false evidence described in s.
192 is punishable under s. 193 with imprisonment which may extend to seven
years and fine, if the -evidence is given or fabricated to be used in any stage
of judicial proceeding.
Section 196 next provides:
" 196. Whoever corruptly uses or
attempts to use as true or genuine evidence any evidence which he knows to be
false or fabricated shall be punished in the same manner ,is :If he gave or
fabricated false evidence." It is, of course, not necessary to mention
again that for the offences under ss. 193 and 196, Indian Penal Code there
could be no prosecution without a complaint in writing of the court concerned.
An attempt was, in fact, made to have Dr. Dutt Prosecuted under s. 193 but the
court declined to file a complaint.
The broad distinction between offences under
the two groups s this. Section 465 deals with the offence of forgery by the
making of a false document and s. 471 with the offence of using forged document
dishonestly or fraudulently.
Section 193 deals with the giving or
fabricating of false evidence and section 196 with corruptly using evidence
known to be false. The gist of the 500 offence in the first group is the making
of a false document and the gist of the offences in the second group is the
procuring of false circumstances or the making of a document containing a false
statement so that a judicial officer may form a wrong opinion in a judicial
proceeding on the faith of the false evidence. Another important difference is
that whereas S. 471 requires a user to be either fraudulent, dishonest or both,
s. 196 is satisfied if the user is corrupt. The Penal Code defines the
expressions fraudulently and dishonestly but not the expression corrupt.
We shall now attempt to apply the two groups
of offences contained in Chapter XI and Chapter XVIII, to the proved acts of
Dr. Dutt. We shall begin with Chapter XI. The definition of the expression
"fabricating false evidence" in s. 192 already quoted, quite clearly
covers this case. If Dr Dutt fabricated the false diploma, he made a document
containing a false statement intending that it may appear in evidence and so
appearing in evidence may cause any person who is to form an opinion upon it to
entertain an erroneous opinion touching on point material to the result of a
judicial proceeding. Dr. Dutt, as alleged, was falsely posing as an expert and
was deposing about matters which were material to the result of the trial. He
had a document to support his claim should occasion arise. He produced the
document, although asked to do so, intending that the presiding Judge may form
an erroneous opinion about Dr. Dutt and the relevancy of his evidence. The case
was thus covered by s. 192. When Dr. Dutt deposed, let us assume falsely about
his training, he committed an offence under s. 193. Again, when Dr. Dutt used
the diploma as genuine his conduct was corrupt, whether or not it was dishonest
or fraudulent. The word "corrupt" does not necessarily include an.
element of bribe taking. It is used in a much larger sense as denoting conduct
which is morally unsound or debased. The word "corrupt" has been
judicially construed in several cases but we refer here to two cases only. In
Emperor v. Rana Nana(1) Chief Justice Macleod considered the word to be of
wider import than the words fraudulently or dishonestly and did not confine it
to the taking, of bribes or cases of bribery. In Bibkhranjan Gupta v. The King,
(2) Mr. Justice Sen dealt at length with this word.
He was contrasting s. 196 with s. 471 and
observed that the word corruptly was not synonymous with dishonestly or
fraudulently but was much wider. According to him it even included conduct
which was neither fraudulent nor dishonest if it was otherwise blameworthy or
(1) I.L.R.. 46 Bom. 317. (2) I.L.R.  2
501 It would thus be seen that the action of
Dr. Dutt was covered by ss. 192 and 196 of the Penal Code. If Dr. Dutt gave
false evidence in court or if he fabricated false evidence the offence under s.
193 was clearly committed. If he used fabricated evidence an offence under s.
196 was committed by him. These offences would have required a complaint in
writing of the Sessions Judge before cognizance could be taken.
We may now consider whether the narrower offence
of forgery of the diploma or of the user of the forged diploma as genuine was
committed. If these offences were committed then prosecution for them could be
launched without a complaint by the court concerned. It may be pointed out at
once that it was not suggested before us that Dr. Dutt made a false document
within the definition of the expression in s. 464 of the Indian Penal Code. In
fact, there was no complaint that he committed the forgery himself. He was said
to have, used a false document as genuine dishonestly and fraudulently. The
word dishonestly is defined by s. 24 of Penal Code. A person who does anything
with the intention of causing wrongful gain to one person or wrongful loss to
another person, is said to do that thing 'dishonestly'. Dr. Dutt's conduct
involved neither a gain to any person nor loss to another. He was asked to
produce the diploma in court and he did. It is a matter of some doubt whether
he can be said to have used the diploma because he did not voluntarily bring
the diploma to court. There is authority to show that such a user is not
contemplated by s.
471 of the Indian Penal Code [See Assistant
Sessions Judge North Arcot v. Ranaminal(1) and Ma Ain Lon v. Ma On Nu] (2).
Even if one were to hold that he did use the
document as genuine his intention in producing it was to support his statement
and not to cause a wrongful gain to himself or to cause a wrongful loss to
another. This part of the section does not apply. The next question is whether
his conduct can be said to be fraudulent. The word "fraudulently" is
defined by s. 25 of the Penal Code. A person is said to do a thing fraudulently
if he does that thing with intent to defraud but not otherwise. The last three
words "but not otherwise" clearly indicate that the intent must be an
"intent to defraud". This expression has given a great deal of
trouble as the rulings show. It may be pointed out that in the Larceny Act of
1.861 and in the Companies Act of 1862 in England the expression was "with
intent to deceive or defraud", while in the Forgery Acts the words
"with intent to defraud" alone were used. The reason was (1) LI-R. 36
(2) A.I.R. Rangoon 191.
502 that documents were divided into two :
public documents and private documents. In the case of public documents it was
enough if the intention was merely to deceive but in the case of private
documents such an intention was not considered sufficient but "an intent
to defraud" was required. The distinction between the two expressions was
made by Lord Buckley (then Buckley J) in a winding up case as follows :
". . . . To deceive is, I apprehend, to
induce a man to believe that a thing is true which is false, and which the
person practising the deceit knows or believes to be false. To defraud is to
deprive by deceit : it is by deceit to induce a man to act to his injury.
More tersely it may be put, that to deceive
is by falsehood to induce a state of mind; to defraud is by deceit to induce a
course of action. (In re London and Globe Finance Corp.
Ltd (1903) 1 ch. 728).
There has been much dispute in recent years
as to what Lord Buckley meant by the words "deprived by deceit".
These are apparently the key words. The rest is mere paraphrasing.
Whether these words meant the causing of an
economic loss to some person by means of deceit or merely the inducing of a
person to act against his own interests has been much debated. The House of
Lords in Welbam v. Director of Public Prosecutions(1) ruled that it is not
necessary that there must be an intention to cause an economic loss. The
decision of the House of Lords has been criticized by the editors of Kenny's
Criminal Law and Russel on Crimes. In Criminal Law Review 1958 and 1960 other
writers have not accepted the interpretation of Buckley J's words by the House
of Lords, though there is some support in Modern Law Review, May 1960 and the
Cambridge Law Journal 1960. We need not go into that question here, but it may
be said that a mere acting to one's discomfort or discomfiture would not
suffice. For the present it is sufficient to say that the words "with
intent to defraud" in the section indicate not a bare intent to deceive
but an intent to cause a person to act or omit to act, as a result of deception
played upon him, to his disadvantage. This is the most extensive meaning that
may be given to the expression "with intent to defraud" in our Penal
Code and the words "but not otherwise" clearly show that the words
'intent (1)  A.C. 103.
503 to defraud" are not synonymous with
the words "intent to deceive" and require some action resulting in
some disadvantage which but for the deception, the person deceived would have
In the light of the above discussion we shall
now see how the conduct of Dr. Dutt fits in with s. 471. The words
"dishonestly" and "fraudulently" are used there. We have
shown above that Dr. Dutt did not intend to cause wrongful gain to one person
or wrongful loss to another person when he brought the diploma, whether forged
or not, into court.
He was ordered to do so. He may have intended
to deceive the court, even as he intended that others should be deceived, into
believing that he was a forensic expert (which perhaps he was not) and that he
held a diploma from a recognised institution. He did not act dishonestly. The
next question is whether he acted fraudulently, that is to say, with intent to
defraud. His intention was not to cause any one to act to his disadvantage
because he did not bring the diploma voluntarily but under orders of the court.
He did not, therefore, have the intent to cause voluntarily, a course of
conduct in any person to that person's disadvantage. In other words, though he
might have intended a deception he did not intend defrauding. His conduct was
perhaps corrupt in the larger sense for he intended that the Sessions Judge
should form an erroneous opinion about him and his testimony, as he continued
to claim the document as genuine.
We are, therefore, satisfied that Dr. Dutt's
conduct does not come within s. 471. On the other hand, it falls within s. 196
which casts its net wider in the interest of the purity of administration of
justice. It may be noted that an offence under s. 196 of the Penal Code is a
far more serious offence than the offence under ss. 465/471. The former is
punishable with imprisonment up to seven years and fine while the latter is
punishable with imprisonment up to two years or with fine.
In this connection we may again recall the
words of this Court which were put in the forefront by Mr. Chari that it is not
permissible for the prosecution to drop a serious charge and select one which
does not require the procedure under s. 195 of the Code of Criminal Procedure.
If the offence was under s. 196, Indian Penal Code, a complaint in writing by
the court concerned was required. Before a complaint is made the court has to
consider whether it is expedient in the interests of justice to order a
prosecution. In the lesser offence no such complaint by the court is necessary
and it is obvious that the lesser offence was L7Sup.165-4 504 chosen to bypass
the Sessions Judge who had earlier decided that Dr. Dutt should not be
prosecuted for perjury. Such a device is not to be commended. In our opinion,
the offence in the present case did not fall within ss. 465/471, I.P.C.
and the prosecution launched against Dr. Dutt
cannot be allowed to go on.
In the result the appeal succeeds and is