The prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence has been discussed under Section 195 [“Section”] of the Code of Criminal Code, 1973 [“CrPC”].  It can be broadly categorized into three parts. Section 195(1) (a) deals with complaints under Section 172 to 188 of the Indian Penal Code, 1860 [“IPC”]. These IPC Sections define offences under which the public servant is either obstructed or disobeyed. Section 195(1)(b)(i) relates to false evidence and offences against public justice mentioned in Chapter XI of the IPC. Further, offences relating to documents mentioned under Chapter XVIII of the IPC are covered under Section 195(1) (b) (ii) of CrPC.

The section aims to protect people from being ‘unnecessarily harassed by vexatious prosecution in retaliation’. It is achieved by limiting the power of the Magistrate to take cognizance under Section 190. Under Section 195, cognizance can only be taken by the court if the complaint is filed by the public servant concerned or the Court mentioned therein.

In this article, the researcher has analysed the Supreme Court judgment of CBI v M Sivamani (MANU/SC/0927/2017) which revolves around Section 195(1) of the CrPC. The argument being put forth is that the apex court has failed to consider certain legal precedents laid down in this regard.

Prosecution For Contempt Of Lawful Authority Of Public Servants

Section 195 (1) (a) of the CrPC covers the prosecution for contempt of lawful authority of public servants. Under this, the Courts are barred from taking cognizance of any offences (or related offences such as abetment, attempt or criminal conspiracy) punishable under Sections 172 to 188 of IPC. The cognizance can only be taken if a written complaint is filed by the public servant concerned or by their administratively superior.

The section makes it very clear that any complaint under this particular section must fulfill two requirements.

Firstly, the complaint filed must be in writing. It has been held by Courts in certain cases such as State of UP v Mata Bhikh and Daulat Ram v. State of Punjab, that complaint has to adhere to the form prescribed under Section 2 of the CrPC. Other forms of complaint are not acceptable under this section.  The complaint must be addressed to a Magistrate with a view to initiate proceedings against the same.

Secondly, the complaint is to be filed by the Public Servant concerned or their administrative superior. The term ‘administratively’ clarifies the nature of the subordination for the purpose of section 195(1) (a). It is important to note that the administrative subordination is to be seen at the time of filing the complaint. It is not to be seen with respect to the time of commission of the offence.

Analysis of Recent Supreme Court Judgment

In the year 2017, the Supreme Court pronounced a judgment in CBI v. M Sivamani. In this case, a false complaint was filed upon the occurrence of a road accident seeking compensation from the Insurance Company for the death of a scooter driver. It was alleged that the deceased died after colliding with the auto-rickshaw. In reality, the person died after falling from the scooter himself. The National Insurance Company filed an appeal in the Madras High Court which ordered investigation by the Crime-Branch Crime Investigation Department [“CB CID”]. The CB CID submitted a charge-sheet. Later, the Central Bureau of Investigation [“CBI”] took over the matter and filed a charge-sheet. The Respondent, an advocate, was charged under Section 182 of the IPC for misrepresentation and producing false evidence. The respondent pleaded that as per Section 195 (1)(a)(i) of the CrPC, courts are barred from taking cognizance for offences under Section 182 of the IPC, unless a written complaint is filed by the public servant concerned or by their administratively superior. It was contended that formal requirements were not fulfilled. The High Court decided in favour of the Respondent. However, the Supreme Court reversed the High Court’s decision. The Supreme Court relied on the Iqbal Singh Marwah constitutional bench judgment which held that any interpretation which renders the victim remediless must be discarded. The Supreme Court also relied on the case of Perumal v. Janaki (MANU/SC/0041/2014) which held that the bar under Section 195(1) (b) (ii) won’t apply, if the High Court directs the complaint to be filed. The Court pointed out the objective behind this section which is to prevent false proceedings by a private person. It was held that the direction of the High Court to order investigation is equivalent to the complaint filed by an administrative superior. The reasoning given by the Supreme Court can be criticized on multiple levels.

Firstly, a complaint under Section 195(1)(a) of the CrPC must be filed by a public servant or their administrative superior. A High Court does not fit this required criterion. The terms “Court” and “public servant or his administrative superior” are distinct and do not overlap for the purpose of this section. Section 195(1) (a) deals with complaints filed by public servants and Section 195(1) (b) and (c) deal with complaint filed by Courts. Moreover, while ascertaining the ‘administratively superior public servant’, provisions of Section 195(4) of the CrPC are not to be considered. Those provisions clearly deal with the subordination of Courts under Section 195(1)(b) and not with the subordination of public servants under Section 195 (1)(a). Further, the definition of ‘Public Servant’ under Section 21 of IPC includes ‘Judges’ and not ‘Courts’ per se. Therefore, the expression “the public servant or his administrative superior” must be interpreted to mean the public servants themselves and not public servants as representatives of any Court. Hence, High Courts should be excluded from this expression as the legislature was clear on its intent. It used distinct words to differentiate between the requirements of Section 195(1) (a), and Section 195(1) (b).

Secondly, the Supreme Court failed to look into the format of the complaint. For taking cognizance under Section 195, a written complaint by the competent authority is an essential ingredient. The clear and unambiguous language of the provision indicates the same. According to the facts, the High Court ordered investigation by the CB CID and later the CBI. The investigation was directed on the appeal of the Insurance Company. Moreover, the cognizance was to be taken on the charge-sheet filed by the CBI. Therefore, no complaint has been filed on which cognizance can be taken under Section 195(1) (a) (i).

Thirdly, in the case of MS Ahlawat v. State of Haryana, the court pointed out that under Article 142 of the Constitution, the substantive procedure prescribed by one statute cannot be ignored by the Court. The Disciplinary Committee of the Bar Council is supposed to deal with complaints of professional misconduct. In the case of CBI v Sivamani, the respondent is guilty of professional misconduct and must be tried under the same charges by the Disciplinary Committee.

Fourthly, the victim is not remediless as contended by the Supreme Court. The CBI charged the accused under Section 120B of the IPC as well. The Court can instead find each accused vicariously liable as they agreed to do the act.

Therefore, it is concluded that the decision of CBI v Sivamani miserably failed to consider the primary requirements prescribed by the courts in previous judgments. The courts in the previous judgments had tried to stick to the language of the provision and uphold the intention of the legislature. The apex court focused on the objective behind the section which is to prevent false proceedings by a private person over its clear and unambiguous language. Their different approaches rendered different judgments and led to their failure in having a uniform interpretation.

The article has been written by Aastha Gangwal

This article was first published in the Blog namely The Criminal Law Blog