1965 INSC 0195 Dr. S. Dutt Vs State of Uttar Pradesh Criminal Appeal No. 90 of 1965 (M. Hidayatullah, K. N. Wanchoo, J. C. Shah JJ) 18.08.1965 JUDGMENT 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, Hardio. Dr. Dutt claimed to hold a diploma from the Imperial College of Science and Technology, London to the effect that he had Specialized 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 certificates for his inspection. Dr. Dutt pro 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, Hardio alleging that Dr. Dutt had committed an offence under s. 466/477 [subsequently changed to s. 465/471] of the Indian Penal Code in the court of the additional session Judge, Hardio 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 t The case went before the Additional District Magistrate [Judicial] Hardio 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. 1983 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 provision 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 forged document and, therefore, the offence fell within ss. 465/471 of the Indian P Section 195 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 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 forgery of a document as described in s. 463 I. P. C. and of using such forged documents, if produced Mr. Chari for Dr. Dutt first draws attention to certain observations of this Court in Basir ul Hud and Others v. The State of West Bengal and Nur ul Huda v. The State of West Bengal 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 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 the device 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 one punishable under some other section of the Indian penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code. 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. Section 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 also documents and their use. Section 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 here. 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 pat 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 practising 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 extent 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 and 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 Penal Code. Before we analyse these section 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 climbed 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 circumstances to exist... 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 sued in any stage of judicial proceeding, Section 196 next provides: "196. Whoever corruptly 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 as 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 is 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 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 put 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 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 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 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 improper. 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 than 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 mater of some doubt whether he can be said to have used the diploma becaus "....... To deceive is, I apprehend, to induce a man to believer that a thing is true which is false, and which the person practising the deceit know's or believers to be false. To defraud is to deprave 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 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 to act against his own interests has been much debated. The House of Lords in Welbam v. Director of Public Prosecutions 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 Cambridage 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 indicated not bare intent to deceive but an intent to caus 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 hav 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 chosen to bypass the session Judge who had earlier decided that Dr. Dutt should not be prosecuted for perjury. Such a advice 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 allowed Appeal allowed.