Santokh Singh Vs. Izhar Hussain &
ANR  INSC 96 (25 April 1973)
MATHEW, KUTTYIL KURIEN
CITATION: 1973 AIR 2190 1974 SCR (1) 78 1973
SCC (2) 406
Indian Penal Code, s. 211-Its scope.
Pursuant to an F.I.R. the respondent, I and
few others were tried before Addl. District Magistrate for offences under Ss.
147, 323/149 and 325/149, I.P.C.
The A.D.M. acquitted all the accused.
Respondent lzhar, one of the accused was implicated and wrongly identified,
although he was not one of the assailants present at the place of occurrence.
Later, respondent lzhar filed a petition
before the A.D.M.
under Ss. 476/479 Cr. P.C. praying that the
appellant, one K and the sub-Inspector of Police, be prosecuted for the offence
under Ss. 211/193 I.P.C. because the S.I. in collusion with K had submitted a
wrong charge sheet whereas K had lodged a false report at the instance of one H
and also these three persons had intentionally given false evidence during
petitioner's trial and fabricated false evidence.
The Magistrate rejected the application of
the respondent following the case of' Shabir Hussain Bholu v. State of Maharashtra, A.I.R. 1963 S.C. 816. The Sessions Court also dismissed the appeal. On a
revision u/s. 435/439 Cr.P.C.
the High Court recorded its opinion that it
was a fit case in which the complaint under s. 211, I.P.C. should be filed
against the persons responsible for lzhar's false prosecution and directed
According to the respondents, when the
appellant stated in the witness box that he had seen Izhar with others in
'marpit' and thereafter in the identification parade in the jail he had made a
false charge against lzhar therefore, he was liable to be prosecuted under s.
Allowing the appeal.
HELD : (i) The essential ingredient of an
offence under s.211 I.P.C. is to institute or cause to be instituted any
criminal proceeding against a person with intent to cause him injury or with
similar intent to falsely charge any person with having committed an offence,
knowing that there is no just or lawful ground for such proceeding or charge.
Instituting or causing to institute false
criminal proceedings resume false charge but false charge may be prepared even
when no criminal proceedings result. In the present case, the appellant had not
instituted any criminal proceedings against anybody; neither did he 'falsely
charge' anybody. Giving false evidence against an accused person during the
course of a criminal trial, may appropriately amount to an offence under Ss.
193, I.P.C.; but the statement in order to constitute the "charges"
211, I.P.C. should be made either in a
complaint or in a report of a cognisable offence to a competent police officer
with the intention of setting the criminal law in motion.
Therefore, under the circumstances, no
offence under s. 211, I.P.C. can be 'considered to have been committed. [64D]
(ii)In view of the appellant's statement that he did not see lzhar amongst the
assailants, it was not possible to understand how it could be expedient in the
interest of justice to direct the appellant's prosecution. Every incorrect or
false statement does not make it incumbent on the court to order prosecution.
The court has to exercise judicial discretion in the light of all the relevant
circumstances when it determines the question of expediency.
The court orders prosecution in the larger
interest of the administration of justice and not to gratify feelings of
personal revenge. [65D-E] (iii)Identification at test parades could by no
stretch of imagination, be considered to amount to a false charge against the
respondent lzhar as contemplated by s. 211 I.P.C. Such identification is not
substantive evidence and it can only be used as corroborative of the statement
in court. [65E] 79 (iv)It is doubtful if the High Court had at all jurisdiction
to make an order of complaint because it was neither the court which tried the
original offences nor a court to which the trial court was subordinate. The
High Court, instead of directing the prosecution of the appellant, could have
quashed the orders of the two courts below and send the case back to the trial
court for reconsideration of the matter in accordance with law. [65H] Kuldip
Singh v. State of Punjab,  S.C.R. 125 and Haridas v. State of West Bengal,
 7 S.C.R. 237, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No,. 35 of 1970.
Appeal by special leave from the judgment and
order dated May 22, 1969 of the Allahabad High Court, (Lucknow Bench) at
Lucknow in Cr. A. No. 132 of 1967.
R. K. Jain and A. K. Gupta, for the appellant
K. L. Kohli, for the respondents.
The Judgment of the Court was delivered by
DUA, J. In this appeal by special leave, the appellant challenges the order of
a learned single Judge of the Lucknow Bench of the Allahabad High Court dated
May 22, 1969 allowing the revision of lzhar Hussain and after setting aside the
order of the Sessions Judge, Barabanki dated March 15, 1967 as also that of the
Additional District Magistrate (Judicial), Barabanki dated January 11, 1967,
directing the Deputy Registrar of theHigh Court to file a complaint under S. 21
1, I.P.C. against the appellant for falsely charging Izhar Hussain with
offences under ss. 323 and 325 read with S. 149 and under S. 147, I.P.C. in the
court of the Additional District Magistrate (Judicial), Barabanki.
It appears that pursuant to the first
information report (Ext. Ka-9) lodged by Kartar Singh s/o Shri Lachman Singh at
police station Kotwali Sub-District Nawabganj, District Barabanki on February
7, 1966, lzhar Hussain respondent and some others were tried in the court of
the Additional District Magistrate (Judicial), Barabanki for offences under ss.
147, 323/149 and 325/149, I.P.C. Several witnesses were examined in support of
the prosecution case. Santokh Singh appellant appeared as P.W.4. In his
examination in chief, so far as relevant for our purpose, he had deposed on
September 3, 1966 as follows :"I had gone to the jail for identifying the
accused persons. By putting his hand on Mohd, Zahir, Usman, Shahnshah, Puttan
and Izhar Husain the witness stated, I had seen them in the marpit and
thereafter in the identification parade in the jail-" In
cross-examination, he had stated, inter alia "I did not see among the
assailants the accused lzhar Hussain present in Court. I did not happen to see
this boy in that night. The men of the Octroi post said to me that Anwar's son
Izhar was also present among the assailants. I identified this boy in the jail
at the instance of the people of the Octroi post." 80 The Additional
District Magistrate trying the cases acquitted all the accused of the offences
charged on November 30, 1966. In the course of his judgment. the learned
Magistrate observed inter alia "One of the accused lzhar Hussain is a boy
aged about 13 years. It has been stated by Kartar Singh andSantokh Singh that
actually they had not seen him ;it the place of occurrence. Still Santokh Singh
identified him before Shri A. P. Singh, Magistrate. He explains that this he
did because the Octroi personnel told him so. Obviously on their mere telling
it could not have been possible to identify this boy." Earlier the learned
Magistrate had observed that Kartar Singh and Santokh Singh were obviously the
victims of the assault. It is noteworthy that the Additional District
Magistrate while acquitting the accused persons did not hold that Santokh Singh
had falsely charged lzhar Hussain or any other accused persons, nor did the
learned Magistrate consider it to be expedient in the interest of justice to
prosecute Santokh Singh for an offence under s. 21 1, I.P.C.
In January, 1967, lzhar Hussain presented an
application in the court of the Additional District Magistrate (Judicial),
Barabanki under ss. 476/479-A, Cr-P.C. (in the application as printed in the
paper book apparently these sections have wrongly been described to be of
I.P.C.) praying that Kartar Singh, Santokh Singh and R. D. Chowdhry, S.I.,
police station Kotwali, be prosecuted for the offence under ss.
211/193, I.P.C. because Shri R. D. Chowdhry
in collusion with Shri Kartar Singh had submitted a wrong charge sheet whereas
Kartar Singh had lodged a false report at the insta nce of one Karnail Singh
and also that these three persons had intentionally given false evidence during
the petitioner's trial and had also intentionally fabricated false evidence for
the purpose of being used as evidence in the case.
The Additional District Magistrate observed
that after considering the evidence in the main case he had disbelieved the
witnesses for the prosecution and had held lzhar Hussain's prosecution to be
false but in spite of this conclusion he had not directed any proceedings to be
taken under s. 479-A, Cr.P.C., nor had be ordered criminal prosecution of the
three aforementioned witnesses. The proceedings under s. 476, Cr.P.C. were
accordingly held incompetent. 'Ibis view was taken on the basis of the decision
of this Court in Kuppa Goundan and another v. M. S. P. Rajesh(1) and two other
decisions of the Madras High Court. In his order, however, the learned
Magistrate also made a reference to Shabir Hussain Bholu v. State of
Maharashtra (2). lzhar Hussain's application was considered by the Magistrate
to be misconceived in view of the decision in Shabir Hussain's case (supra) and
lzhar Hussain took the matter on appeal to
the court of the Sessions Judge but with no better fate. The Sessions Judge
also (1) A.J.R. 1966 S. C. 1863.
(2) A.T.R. 1963 S. C. 816.
81 referred to the aforesaid two decisions of
this Court and observed as follows "Applying the said principle of law as
laid down by their Lordships, it is obvious that the entire material was before
the Court below and in spite of the fact that it arrived at the finding that
the witness had perjured, it did not decide to proceed under Section 479-A,
Code of Criminal Procedure. In these circumstances, it was not open to the
Court below to have proceeded for perjury under Section 479-A, Code of Criminal
Procedure, as prayed by the learned counsel appearing on behalf of the
appellant, because upon the facts of the present case, out of which this appeal
has arisen, the bar of clause (6) of Section 479-A clearly came into play.
Thus, the Court below was correct in dismissing the application made by the
appellant as misconceived.,, The appeal of Izhar Hussain was accordingly
lzhar. Hussain thereupon took the matter to
the Lucknow Bench of the Allahabad High Court on revision under ss.
435/439, Cr.P.C. The learned single Judge
observed that even accepting the view of the courts below that no complaint
under S. 193, I.P.C. could be, filed because of the technical defect, the
applicant's prayer for filing a complaint under S. 21 1, I.F.C. should have
It was then observed that lzhar Hussain. a
boy of 13 years had been falsely prosecuted in the case and that his
participation in the crime was highly improbable, if not impossible. He further
observed that Kartar Singh had not named Izhar Hussain as one of the assailants
in the F.I.R.
lodged by him, nor did Kartar Singh identify
Izhar Hussain as a culprit in the test identification parade or in the trial
court. Santokh Singh appellant, however, did identify lzhar Hussain as one of
the participants in the crime in the test identification parade and also picked
him up in the trial court stating that he had also taken part in the crime. In
the cross-examination, as the High Court itself noticed, Santokh Singh
expressly admitted that he had not seen lzhar Hussain amongst the assailants
and indeed he had not seen lzhar Hussain that night. On this material, the High
Court felt that it had been established beyond doubt that lzhar Hussain had
been implicated falsely. On this premise, the High Court recorded its opinion
that it was a fit case in which the complaint under S. 211, I.P.C. should be
filed against the persons responsible for Izhar Hussain's false prosecution.
After so observing, the High Court felt that since Kartar Singh had frankly
stated that he had not seen lzhar Hussain at the spot on the night in question
at all there was no cogent ground for prosecuting him. The cases of Santokh
Singh appellant and of R. D. Chowdhry were considered to be different. Izhar
Hussain's father who carried on transport business through trucks and lorries
had, according to the MO Court, trade rivalry with Santokh Singh and his
master. There was thus a "foul attempt" to wreak vengeance against
Izhar Hussain's father by falsely implicating the minor boy and for this
reason, it was directed that the complaint under s. 21 1, I.P.C. be filed
against the appellant for falsely charging Izhar Hussain for the offences
7-L 944 Sup CI/73 82 In this Court,Shri Gupta
has very forcefully contended that on the material on the record this direction
is wholly unjustified, if not positively illegal, being based on misreading of
evidence and on ,erroneous view of law.
According to the submission, the appellant
had neither lodged the F.I.R. nor otherwise instituted any criminal proceeding
or falsely charged Izhar Hussain within the contemplation of s. 21 1,
I.P.C.Besides, there is absolutely no material on the record on which theHigh
Court could have formed an opinion that it is expedient in the interest of
justice that a complaint under s. 21 1, I.P.C.
should be filedagainst the appellant.
ShriKohli on behalf of the respondents has
tried to support the order of the HIgh Court and has submitted that, as
observed by Madholkar, J. in Haridas v. State of West Bengal(1) the words
"or :falsely charges" in s. 211, I.P.C.
are not restricted by the words
"institutes or causes to be instituted any criminal proceeding". The
Legislature according to the submission has provided in this section for two
kinds of acts : (i) the institution of proceeding and (ii) making a false
charge. This section 'in the words of Mudholkar, J., added Shri Kohli, is not
limited to the institution of a complaint upon a false charge as such an
interpretation would completely shut out criminal proceedings in which no
charge of an offence has been made.
It is on this. observation that the learned
counsel has tried to build and ,develop the contention that when the appellant
stated in the witness box as P.W.4 that he had seen Mohd. Zahir, Usman,
Shahanshah, Puttan and lzhar Hussain in the marpit and thereafter in the
identification' parade in the jail, he had made a false charge against lzhar
Hussain and was, therefore, liable to be prosecuted for an offence under s.
211, I.P.C. The counsel has in this connection expressly stated that he does
not want to prosecute the appellant for any offence mentioned in s. 479A,
Cr.P.C. The bar resulting from non-complaince with that section would,
therefore, be ineffective so far as prosecution for other offences is
concerned. In support of his case he has relied on ss. 195 (1 ) (b) and 476,
I.P.C.Section 195 so far as relevant reads Prosecution for contempt (1) No
Court shall of lawful authority of take cognizance public servants.
(a) x x x x x Prosecution for certain
offences against public justice.
(b) of any offence punishable under any of
the following sections of the same Code, namely, sections 193, 194, 195, 196,
199, 200, 205, 2P6, 207208, 209, 210, 211 and 228, when such offence is alleged
to have been committed in, or in relation to, any proceedings in any Court,
except on the complaint in writing of (1)  7. C.R. 237.
83 such Court or of some other Court to which
such Court is subordinate; or (c) x x x x Sub-section (3) of this section lays
down that for the purposes of this section, a Court shall be deemed to be
subordinate to the court to which appeals ordinarily lie fromthe appealable
decrees or sentences of such former court. According to the proviso, whereappeals
lie to more, than one court, the Appellate Court of inferior jurisdiction shall
be the court to which such Court shall be deemed to be subordinate Section 476
which provides for procedure in cases mentioned in g. 195 so far as relevant
for our purpose lays down "476. (1) When any Civil, Revenue or Criminal
Court is, whether on application Procedure in cases made to it in this behalf or
other mentioned in wise, of opinion that it is expedient in section 195. the
interests of justice that an inquiry should be made into, any offence referred
to in section 195, subsection (1), clause (b) or clause (c), which appears to
have been committed in or in relation to a proceeding in that Court, such Court
may, after such preliminary inquiry, if any, as it thinks necessary, record a
finding to that effect and make a complaint thereof in writing signed by the
presiding officer of the Court, and shall forward the same to a Magistrate, of
the first class having jurisdiction, and may take sufficient security for the
appearance of the accused before such Magistrate or if the alleged offence is
nonbailable may, if it thinks necessary so to do, send the accused in custody
to such Magistrate, and may bind over any person to appear and give evidence
before such Magistrate Provided that, where the Court making the complaint is a
High Court, the complaint may be signed by such officer of the Court as the
Court may appoint..
For the purposes of this sub-section, a
Presidency Magistrate shall be deemed to be a Magistrate of the first
class." Now, in the present case, the Additional District Magistrate on
November 30, 1966 acquitted all the accused of the offences charged. He did not
hold that the appellant had falsely charged. Izhar Hussain with any offence,
nor did he consider it expedient in the interest of justice to prosecute him
for an offence under s. 211, I.P.C. As already noticed when in January, 1967,
Izhar Hussain applied to that court under ss. 476/479-A, Cr.P.C. for the
prosecution of the appellant and two others, the court felt that in view of the
decision in Kuppa Goundan's case (supra) the proceedings under S. 476, Cr-P.C.
were incompetent. Section 479-A has not been relied upon by Shri Kohli and in
our opinion rightly because on the admitted 84 facts in this case that section
has not been complied with.
In Kuppa Goundan's case (supra) it was
observed that the scheme of S. 479-A, Cr.P.C. is to enact a special procedure
for more expeditious and effective manner of dealing with certain cases of
perjury and fabrication of false evidence of witness in the course of judicial
proceedings. But the necessary condition for applying this section is that the
court must form an opinion that a particular witness or witnesses is or are
giving false evidence and at the time of delivering its judgment record a
finding to that effect.
This was not done in this case. Now, by
virtue of s. 479A(6) no proceeding can be taken against Santokh Singh under ss.
476 to 479 for giving false evidence. Shri Kohli's argument, as already
noticed, is that the appellant is not being prosecuted for giving false
evidence as indeed that is not permissible now, but only for falsely charging lzhar
Hussain in his evidence in court. The short question posed, therefore, is, if
by giving false evidence as a witness against Izhar Hussain the appellant can
be said to have charged him within the contemplation of s-211, I.P.C. If this
question is answered in the affirmative, then it will have to be determined
whether there is in fact a false accusation and finally whether it is expedient
in the, interest of justice on the facts and circumstances of the present case
to direct a complaint to be filed under s. 21 1, I.P.C. This section as its
marginal note indicates renders punishable false charge of offence with intent
to injure. The essential ingredient of an offence under s.
211, I.P.C. is to institute or cause, to be
instituted any criminal proceeding against a' person with intent to cause him
injury or with similar intent to falsely charge any person with having
committed an offence, knowing that there is no just or lawful ground for such
proceeding or charge.
Instituting or causing to institute false criminal
proceedings assume false charge but false charge may be preferred even when no
criminal proceedings result. It is frankly conceded by Shri Kohli that the
appellant cannot be said to have instituted any criminal proceeding against any
person. So, that part of s. 211, I.P.C. is eliminated.
Now, the expression "falsely charges'.'
in this section, in our opinion, cannot mean giving false evidence as a
prosecution witness against an accused person during the course of a criminal
trial. "To falsely charge" must refer to the original or initial
accusation putting or seeking to put in motion the machinery of criminal
investigation and not when seeking to prove the false charge by making
deposition in support of the charge framed in that trial.
The words "falsely charges" have to
be, read along with the expression "institution of criminal
proceeding". Both these expressions, being susceptible of analogous
meaning should be understood to have been. used in their cognate sense.
They get as it were their colour and content
from each other. They seem to have been used in a technical sense as commonly
understood in our criminal law. The false charge must, therefore, be made
initially to a person in authority or to someone who is in a position to get
the offender punished by appropriate proceedings. In other words, it must be'
embodied either in a complaint or in a report of a cognizable offence to the
police officer or to an officer having authority over the person against whom
the allegations are made. The statement in order to constitute the
"charges" should be made with the intention and object 85 of setting
criminal law in motion. Statement on oath falsely supporting the prosecution
case against an accused person more appropriately amounts to an offence under
193 and 195, I.P.C. and not under s. 21 1,
I.P.C. We do not think that the offences contemplated by ss. 193/195,I.P.C.
on the one hand and S. 211, I.P.C. on the
other were intended by the legislature, in this context, to overlap so as to
make it optional whether to proceed under one or the other. The High Court was,
therefore, in error in thinking that in the present case the appellant's
statement as a witness in the trial court, could be construed as a charge
against lzhar Hussain. Once it is held that no offence under s. 211, I.P.C. can
be considered to have been committed, then no other question arises for, as
conceded by Shri Kohli, Section 479-A would bar prosecution for giving false
The High Court also seems to have committed
serious error in ignoring that in the appellant's statement he had clearly
stated that he had not seen amongst the assailants the accused Izhar Hussain
present in the court. In face of this statement, there was no question of the
appellant having made any accusation against lzhar Hussain in his deposition.
In any event, considering the entire
statement of the appellant it is not understood how it can be considered
expedient in the interest of justice to direct the appellant's prosecution.
Every incorrect or false statement does not make it incumbent on the court to
order prosecution. The court has to exercise judicial discretion in the light
of all the relevant circumstances when it determines the question of
expediency. The court orders prosecution in the larger interest of the
administration of justice and not to gratify feelings of personal revenge or
vindictiveness or to serve the ends of a private party. Too frequent
prosecutions for such offences tend to defeat its very object. It is only in
glaring cases of deliberate falsehood where conviction is highly likely, that
the court should direct prosecution. The High Court seems to have misunderstood
the appellant's evidence and has also failed to apply its mind to the question
of expediency. Reference by the High Court to identification parade is also
somewhat inappropriate. Identification at test parades could by no stretch be
considered to amount to a false charge against Izhar Hussain as contemplated by
s. 211, I.P.C. Such identification is not substantive evidence and it can only
be used as corroborative of the statement in court. The identification parade
thus could not improve the prosecution case.
Besides, we entertain considerable doubt if
the High Court had at all jurisdiction to make an order of complaint as it has
done. It was either the court which tried the original offences or a court to
which the trial court was subordinate, that could make such an order. The court
of the Additional District Magistrate would not seem to be subordinate to the
High Court as provided by section 195(3), Cr-P.C.' Kuldip Singh v. State of
Punjab(1). Two courts below having in their judicial discretion declined to
direct the prosecution of the appellant, on revision the High Court was, in our
view, not all justified in itself directing the filing of the complaint. At
best, if it considered (1)  S.C.R. 125.
86 the orders of the two courts below tainted
with a serious legal infirmity or manifest error resulting in grave miscarriage
of justice, it could have, after quashing those orders, sent the case back to
the trial court for reconsideration of the matter in accordance with law' As a
result of the foregoing discussion, we have no hesitation in allowing this
appeal and setting aside the order of. the High Court.
S.C. Appeal allowed.