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Report No. 277

(i) Indian Penal Code, 1860

4.30 Chapter IX of the IPC titled 'Of offences by or relating to Public Servants', deals with offences which can be committed by public servants and the offences which relate to public servants, though not committed by them. Chapter XI titled 'Of false evidence and offence against public justice', lays down the offences which obstruct the administration of justice. The sections as contained in these chapters together list offences that provide possible instances of police, investigating agency and prosecutorial misconduct concerning an investigation, prosecution, trial and other criminal proceedings.

(a) Offences by or relating to Public Servants 4.31 With respect to the issue under consideration, sections 166, 166A and 167 under Chapter IX are to be taken note of. Section 166 criminalises willful departure from the direction of the law by a public servant with an intent to cause injury to any person. To make an offence under the section it is required that

(i) the offender must have done the act 'being a public servant';

(ii) there must be a direction of law which the public servant was bound to obey;

(iii) public servant knowingly disobeyed such direction;

(iv) by such disobedience public servant must have intended to cause or knew it to be likely to cause injury to a person. This section has been observed to be comprehensive and generally includes several offences involving abuse of official authority. Offence hereunder is punishable with maximum imprisonment for one year with or without fine.

4.32 While section 166 deals with the disobedience of any direction of law in a general sense, a relatively more specific provision as contained in section 167 deals with particular instance of a public servant assigned the duty of preparation of a document, incorrectly prepares, frames, translates such document. A false entry in his diary by a Station House Officer (SHO) to support an Inspector rendered him guilty under this section of intentionally framing an incorrect public record75. The section prescribes a maximum imprisonment of three either description upto 3 years, or fine, or with both.

4.33 To constitute a charge under section 167, it is also required that such public servant knew or believed that he was incorrectly framing or translating the document, and that he did the same with the intent or with the knowledge that it was likely that he would thereby cause injury. The intention to cause injury to any person by perversion of official duty is a requirement under the section, however, it is notable that where the act is in itself unlawful, the proof of justification or excuse lies with the defendant; and in failure thereof, the law implies criminal intent.76

4.34 In the case of State v. Saqib Rehman & Ors.,77 the Sessions Court, Dwarka, New Delhi, vide its order dated 2 February 2011, made a finding that the concerned police officials had framed the persons accused in a false criminal case, fabricating evidence etc., and ordered lodging of a complaint against the concerned officials under sections 166 and 167, IPC, among others. In this case, the persons accused were already in illegal custody when the police officials scripted an encounter basing it on a 'fake secret informer' and showing an arrest of a later date.

4.35 In addition to the above, there is also section 166A, IPC, titled 'Public servant disobeying direction under law.'78 This section lays down three kinds of derelictions of law by a public servant which would amount to an offence thereunder: public servant

(a) knowingly disobeys any direction of law prohibiting him from requiring attendance at any place of any person for the purpose of investigation into an offence or any other matter;

(b) knowingly disobeys, to the prejudice of any person, any direction of law regulating the manner in which he is to conduct such investigation; and sub-clause (c) fails to record FIR in relation to offence under certain sections specified therein. The punishment provided is minimum of 6 months rigorous imprisonment and maximum of 2 years, and fine.

4.36 If a public officer abuses his office either by commission or omission, and that results in an injury to any individual, an action may be maintained for an offence under Section 166(A), IPC against such an officer; when a duty is performed arbitrarily or capriciously, or the exercise of power results in harassment and agony then responsibility will be fastened upon erring officials and they be will be punished accordingly.79

4.37 In addition to the above provisions in Chapter IX, sections 218 to 220 under Chapter XI also deal with disobedience on the part of public servants in respect of official duty. The said sections though better suited under Chapter IX are included in Chapter XI.

4.38 Section 218, IPC on the same lines as section 167, IPC criminalises intentional preparation of a false/incorrect record by a public servant with the intent to cause or knowing it to be likely to cause loss or injury to any person. It is wider in scope compared to section 167 because it includes within its purview incorrect preparation or framing with the intention of saving any person from legal punishment or saving some property from forfeiture or other charge. An offence under section 218, IPC is punishable with a maximum imprisonment of 3 years of either description, or with fine, or with both.

4.39 An Assistant Sub-Inspector making incorrect entries in the general diary was held guilty of offence under section 218, IPC.80 In Maulad Ahmed v. State of Uttar Pradesh,81 the Supreme Court observed that if a police officer manipulates the record such as police diary etc., it will be the end of honest investigation; and, such offences shall receive deterrent punishment.82

4.40 Section 219, IPC deals with corrupt or malicious exercise of power by public servants engaged in the discharge of judicial function; criminalising corrupt or malicious making or pronouncing of any report, order, verdict etc. by a public servant in a judicial proceeding knowing it to be contrary to law. An offence under this section is punishable with a maximum imprisonment of 7 years of either description, or fine, or with both.

4.41 This section is invoked only with respect to judicial proceedings. Further, there must the judicial proceeding actually commenced or pending, wherein a party claims relief against another and seeks the decision of the court in regard thereto, and there must be the making of real report or a real pronouncement of an order, verdict or decision.83 Where a report was submitted by the police before any order under sections 112 or 145, CrPC was made, it was held that the report did not fall within the scope of section 219, IPC even if the same was corruptly or maliciously furnished.84

4.42 While section 219, IPC is specific in application, extending only to judicial officers, its following section 220 is more general and applies to any person in an office which gives him the legal authority to commit persons for trial or to confinement, such as a magistrate or a police officer. The section criminalises corrupt or malicious commitment for trial or confinement of any person by such an officer knowing that in so doing he is acting contrary to law. An offence under this section is punishable by a maximum imprisonment of 7 years of either description, or fine, or with both. Knowledge that confinement is contrary to law' is a question of fact and not of law, and it must be proved in order to satisfy the requirement of section 220, IPC.85

4.43 This section addresses executive abuses in intentionally illegally confining innocent persons. It is aimed at preventing abuse of power by officers with the power to commit persons to trial or confinement. One such instance, also relevant to the issue under discussion, would be the power of police under section 41, CrPC to arrest a person without warrant in certain cases, subject to the requirement under Article 22(2) of the Constitution i.e. to produce the person arrested before the magistrate within 24 hours. A failure on the part of the police to comply with the foregoing requirement without a reasonable cause would come under the purview of this section, making the concerned officer liable for punishment thereunder.

4.44 However, for the purposes of this section 220, IPC, unlawful commitment to confinement will not of itself warrant the legal inference of malice; it needs to be alleged and proved that the concerned officer corruptly and maliciously confined a person wrongfully.86

4.45 Confining a person on suspicion but with the knowledge that it is contrary to law invokes section 220, IPC.87 If the confinement of a person is itself contrary to law, regardless of the legal authority of the officer to confine, it would be an offence under section 220, IPC.88 Excess of his legal powers of arrest by a police officer invokes the requirements of acting corruptly or maliciously or the knowledge that he was acting contrary to law under section 220, IPC.

However, where the arrest is legal, there can be no guilty knowledge "superadded to an illegal act", such as it is necessary to establish against the accused to justify a conviction under section 220, IPC.89 Interpreting the expression 'maliciously' as it appears in section 220, IPC, the Court observed that unlawful confinement to put pressure on the person confined to come to terms with a person in whom the accused is interested amounts to 'malice'.90 The expression 'corruptly and maliciously' was also interpreted to include wrongful confinement for the purpose of extortion.91 (b) False Evidence and Offences Against Public Justice

4.46 Including the above-discussed sections 218 to 220, there are 44 sections in Chapter XI of IPC- relating to giving and fabricating of false evidence (Section 191 to 200), and to offences against public justice (Sections 201 to 229). With respect to the issue under discussion, this part of the report delves into the working of sections 191 (giving false evidence), 192 (fabricating false evidence), 193 to195 (punishment for the aforesaid), and 211 (false charge with an intent to injure).

4.47 Not specific to public servants, sections 191 and 192, IPC deal with the offence of giving or fabricating false evidence, where section 191 defines what amounts to giving false evidence. To make a statement false evidence within the meaning of section 191, IPC, it must be established that the accused was legally bound by an oath or an express provision of law to state the truth or to make a declaration upon any subject. And, the statement made by the accused must be a false statement and he must know or believe it to be false or must not believe it to be true. The essence of the section lies in intentional making of a false statement.

4.48 In Ranjit Singh v. State of Pepsu92 in a matter concerning illegal detention of a person by the police, the accused, a police officer when called upon to make a statement against an application under Article 226 of the Constitution for a writ of habeas corpus, filed a false affidavit denying that the man was ever arrested by the police or was in his custody. The Court held that the accused had committed the offence of giving false evidence under section 191, IPC.

4.49 Section 192, IPC criminalises fabrication of false evidence done with an intention that such evidence appear in a judicial proceeding, and cause an erroneous opinion touching any point material to the result of such proceeding. The essence of the offence lies in either making a false entry in any book/record or making a document or electronic containing a false statement so as to cause a judge, a public servant or an arbitrator to entertain an erroneous opinion upon any material point.93

4.50 It is the duty of the police officers as well as government officials to allow a case to come before the court without fabrication or padding; prosecution not to determine the guilt of an accused in advance and deceive the court in to giving a verdict based on false evidence.94 It is to be noted that under both sections 191 and 192, IPC, mens rea is an essential element, making punishable 'intentional' giving or 'intentional' fabrication of false evidence.

4.51 Sections 193 to 195, IPC lay down the punishment for the giving and fabricating of false evidence including with the intent to procure conviction for offence punishable with capital punishment and life imprisonment. An investigating officer who was found to be concocting false evidence framing an accused for murder - was found to be guilty under section 194, IPC.95

4.52 With respect to the issue of miscarriage of justice resulting in wrongful prosecution, the next important section is 211, IPC. Under this section it is an offence if a person with the intention to cause injury to another, either

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