Monthly Archives: January 2014

Sibal & CJI look into, may recall, controversial list of 12 Madras judges: 23 Jan 2014

By Kian Ganz Thursday, 23 January 2014, 11:43 Bar, Bench & Litigation

A delegation of Madras High Court Advocates Association president, Paul Kanagaraj and others met with CJI Sathasivam and SC justices Ibrahim Kalifulla and C Nagappan yesterday about their problems with the list of 12 names proposed for judgeship at the high court, reported The Hindu.

The delegation told the Deccan Chronicle that they also met law minister Kapil Sibal on Wednesday, who assured them he would “recall” the list. The CJI reportedly told them that because he is from Tamil Nadu, “he has de­ep interest in the state and will en­sure that only persons with absolute qualifications will be elevated as judges”.

Lawyers in the state returned to work today.
http://www.legallyindia.com/201401234267/Bar-Bench-Litigation/sibal-cji-12-madras-judges

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R Gandhi backs off from Madras HC judgeship names PIL: 27 Jan 2014

Madras high court (HC) senior advocate R Gandhi has asked to withdraw his petition to recall the controversial 12 names recommended for judgeships at the HC, reported the Times of India.

Advocates who had been boycotting work intermittently at the HC since December to protest against the judgeship recommendations, called off the boycott on Thursday after meeting the union law minister Kapil Sibal and the chief justice of India P Sathasivam, “on the latter’s assurance”. Gandhi had filed a memo for withdrawal of the petition on Friday “citing the same reason”, according to the TOI report.

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Latest Karanjawala-Swatanter Kumar photo take-down reply & LI counter: Response awaited: 27 Jan 2014

 

After sending a takedown request for a photograph last Thursday, as reported byLegally India at the time, Karanjawala & Co, the law firm representing former Supreme Court judge Swatanter Kumar in a defamation case against three media companies, declined to specify which parts of Legally India’s coverage relating to the case should be removed.

The firm relied on a Delhi high court injunction of 16 January relating to allegedly defamatory articles and broadcasts published by three media companies about allegations against its client.

Karanjawala had last Thursday (23 January) requested Legally India to remove a pixellated and anonymised photo of Kumar that Legally India had published with its original report of the order.

In its latest email to Legally India on Friday (24 January), the law firm stressed that “the order is unambiguous and does not need any further interpretation or explanation. We call upon you to comply with the order in its true intent and spirit, forthwith and remove all photographs and offending material with regard to our client from your website/tweeter page etc.”.

Legally India responded to Karanjawala earlier this morning (27 January), asserting, amongst other points, that the parts of the order prohibiting publication of Kumar’s photograph, should apply only to the three defendant media companies named in the order.

The correspondence has been reproduced below, following Legally India’s request on 23 and 24 January for Karanjawala to highlight objectionable passages in a PDF of the article in question. Legally India also asked whether, according to Karanjawala, the entire order was binding on third parties.

Karanjawala reply to Legally India, of Friday 24 January 2014 at 19:41

Dear Sir,

1.          In response to your offer contained in email dated 23.01.2014 sent at 1858 hours and email dated 24.01.2014 sent at 0156 hours calling upon our client to provide edits and mark up the articles in question, we state that given the nature of your website and the competence of your editorial board to comprehend fully the true scope, meaning and import of orders passed by the Hon’ble Courts, you would not carry any material which is contrary to the letter and spirit of the order. In this view, we do not find it appropriate to accept your offer to conduct any exercise to mark up the offending articles.

2.         However, for your ready reference, the relevant paragraphs of the order dated 16.01.2014 are reproduced herein and you are called upon to ensure fair reporting in conformity with the orders of the court.  

64.  Accordingly, the defendants, their agents, assigns or any of them acting on their behalf and/or any other person, entity, in print or electronic media or internet are:

a)  Restrained from further publishing the write ups as mentioned in page Nos.6, 7, 10 of the documents file or publishing any article or write up and telecast which highlights the allegations against the plaintiff in the form of headlines connecting or associating plaintiff with those allegations, particularly, without disclosing in the headlines of article that they are mere allegations against the plaintiff or any other similar nature of articles, write up and telecast.

b)  The directions made in para (a) restrains the defendants from publication either in print media or in electronic form or in any manner publishing the said news in televised form. The defendants shall delete the offending content as mentioned in para (a) from internet or other electronic media and shall take necessary steps within 24 hours from today.

c)  The defendants are further restrained from publishing the photographs of the plaintiff either in print media or electronic media or Internet or on TV channels which may suggest connection of the plaintiff with the said allegations made by defendant No.5 and remove his photographs from internet or all other electronic media as well as upload defamatory articles.” [Emphasis supplied]

3.         In respect to your question of the applicability of the order on persons other than those impleaded as Defendant, the order of the Hon’ble High Court is unambiguous inasmuch as the Hon’ble Court has categorically stated that the interim order, as mentioned in paragraph 64(a), (b) and (c) is also passed against any other person, entity, in print or electronic media or internet.

The fact that the interim order is applicable to any other person or entity, in print or electronic media or internet, including entities such as yourself, has also been reported by you in the article “Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press”. Paragraph 63 of the order dated 16.01.2014 is reproduced herein below:

63. In view of the aforementioned discussion, I find that the plaintiff has been able to make out a strong prima facie case on the basis of the disclosure of the material available on record especially copies of newspapers at page Nos.6, 8, 10 of the documents and the CDs which clearly show that the defendants have published the write ups and telecasted by highlighting the allegations on the front page in order to create sensation amongst public and made it apparent by creating the impression that the plaintiff in all probability is involved in such incident. The balance of the convenience is also in favour of the plaintiff as the degree of the prejudice is far more excessive than that of the defendants. The irreparable loss shall ensue to the plaintiff at this stage and not to the defendants if such publications and telecast of TV news of such nature on similar lines are not postponed. The interim order is also passed against any other person, entity, in print or electronic media or internet in view of the settled law in the case of ESPN Software India Private Limited vs. M/s Tudu Enterprises and Others in CS(OS) No.384/2011 dated 18th February, 2011 and Indian Performing Right Society Ltd. Vs. Badal Dhar Chowdhry and Ors., 2010 (43) PTC 332 (Del.). [Emphasis supplied]

 

4. It has also now come to the attention of our Client that the order and its applicability to any other person, entity, in print or electronic media or internet was within your express knowledge since the day of the judgement itself. This is evident from the tweets posted on your tweeter page. It has come to our attention that a statement – “Basically the injunction says 3 media houses (but no others) will have to add ‘allegedly’ in every Swatanter # InternJudge headline”was posted on your page and was available for viewing on 16.01.2014 at 22:35.  At 22:52 on the same day, paragraph 64 of the order dated 16.01.2014 was specifically brought to your attention. Upon the same having been brought to your attention, another tweet was available for viewing that stated –“right you are, missed that…. Will tweet correction….”. The time line reflects that after the said tweet , the paragraph in question was re tweeted on your page, followed by a correction tweet at 23:03 stating :- “According to the order, “everyone” will have to add “allegedly” to headlines in the Swatanter Kumar # InternJudge stories”.

5.         In light of the fact that the operative part of the judgment had been brought to your attention on 16.01.2014 (especially with regard to the use of the name of our Client in the headlines, photographs of our Client etc), you are called upon to ensure that the judgement of the Hon’ble High Court is complied with in its true essence and spirit.  It is a fact that the Hon’ble High Court has permitted entities such as yourself to do fair reporting while observing:-

The observations made in this order are prima facie in nature and will not preclude the defendants to report the Court cases and happenings as facts which are covered ambit of fair reporting on the basis of true, correct and verified information.

 

6.         We are certain that that being a website primarily reporting affairs of the legal fraternity, you will certainly be aware of the consequences that a breach of the said injunction may invite. We are certain that you shall ensure that no breach of the judgement is committed.

7.         We also bring to your notice that in the article posted by you on 23.01.2014 at 20.08 hours infact you informed the reader the “heavily pixellated stock photo “ published in the report dated 16.01.2014, on the orders passed by the Hon’ble Court, was indeed of our client. This in itself is contrary to the letter and spirit of the said order. 

8.         The order is unambiguous and does not need any further interpretation or explanation. We call upon you to comply with the order in its true intent and spirit, forthwith and remove all photographs and offending material with regard to our client from your website/tweeter page etc.

KARANJAWALA AND COMPANY

 

Legally India’s reply to Karanjawala of Monday, 27 January 2014 at 02:44

Dear Madam/Sir

In response to your email sent on Friday 24 January 2014 at 19:41, please find our response to your points below.

1. To avoid vagueness, we would again ask you to specify which parts of our article (“Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press” of 17 January 2014 (the “Article”)) you would claim are in violation of the Delhi High Court order of 16 January 2014 (the “Order”). We believe that this is not an unreasonable request if the Order does indeed apply to parts of the Article, as you seem to claim it does.

2. We would strongly disagree with your interpretation that paragraphs 64(b) and 64(c) of the Order are binding on anyone other than the defendants named in the Order.

However, we would agree with your interpretation of paragraph 64(a) of the Order, which stated:

“the defendants, their agents, assigns or any of them acting on their behalf and/or any other person, entity, in print or electronic media or internet are: a) Restrained from from further publishing the write ups as mentioned in page Nos.6, 7, 10 of the documents file or publishing any article or write up and telecast which highlights the allegations against the plaintiff in the form of headlines connecting or associating plaintiff with those allegations, particularly, without disclosing in the headlines of article that they are mere allegations against the plaintiff or any other similar nature of articles, write up and telecast.” [emphasis ours]

We would assert that all articles published on Legally India in relation to your client, both before and after the date of the Order, have fully complied with this injunction of paragraph 64(a). For your reference, please read the articles collated athttp://www.legallyindia.com/tag/swatanter-kumar carrying the following headlines and/or lead paragraphs referencing the sexual harassment allegations:

Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations […]”

Swatanter Kumar ex-intern PIL admitted: Former SC judge Swatanter Kumar’s ex-intern from NUJS Kolkata who had made sexual harassment allegations against him yesterday

Former SC judge and National Green Tribunal head Swatanter Kumar – who was accused of sexual harassment by an ex-intern from NUJS Kolkata according to Friday’s media reports – sent a legal notice to three media houses demanding an apology from them within

Ex-NUJS intern claims harassment by Swatanter Kumar while he was SC judge: Another graduate of NUJS Kolkata has alleged that she was sexually harassed by a then-sitting Supreme Court judge in 2011”

We would contend that every article published on Legally India has complied with the letter and spirit of the Order by using widely accepted journalistic conventions used in contentious stories of allegations, such as “allege”, “accuse” and “claim”.

While we agree that paragraph 64(a) of the Order expressly places a duty on everyone, including the defendants, paragraphs 64(b) and (c) very clearly only apply to the defendants.

You will note that every operative element of paragraphs 64(b) and (c) expressly mentions “the defendants”. In particular:

“b) The directions made in para (a) restrains the defendants from publication either in print media or in electronic form or in any manner publishing the said news in televised form. The defendants shall delete the offending content as mentioned in para (a) from internet or other electronic media and shall take necessary steps within 24 hours from today.

c) The defendants are further restrained from publishing the photographs of the plaintiff either in print media or electronic media or Internet or on TV channels which may suggest connection of the plaintiff with the said allegations made by defendant No.5 and remove his photographs from internet or all other electronic media as well as upload defamatory articles.” [emphasis ours]

The drafting of paragraphs 64(b) and (c) leaves no doubt that the intention of Justice Manmohan Singh in the Order was to restrain the defendants alone, as otherwise he must have expressly mentioned third parties again in those two paragraphs.

Any other reading would be unnatural and go against the general legal principle that so-called “John Doe” injunctions need to expressly specify that they are binding on third parties.

It is also important to note that the Article merely reported on the Order and the ongoing defamation court proceedings that were instituted by your client, and not on the substance of the allegations against him.

You will no doubt be aware that a Supreme Court constitutional bench headed by Justice SH Kapadia in September 2012, in the case of Sahara India Real Estate Corp. Ltd. & Ors. Vs. Securities & Exchange Board of India & anr, expressly declined to uphold blanket restrictions on media coverage of ongoing court cases, stating that such restrictions would need to be imposed on a case by case basis where reporting would cause a “real and substantial risk of prejudice to the proper administration of justice” ( http://www.sci.nic.in/outtoday/media%20coverage%20judgment.pdf )

In our opinion, under no possible interpretation, would the content of the Article or the publication of your client’s photograph alongside the Article create any such risk.

Any other interpretation of the Order would amount to, in effect, introducing so-called English law “super injunctions” into Indian jurisprudence by the back door.

3. It appears as though you are misreading the Article published on Legally India as support for your claim that the entirety of the “interim order is applicable to any other person or entity, in print or electronic media or internet, including entities such as yourself”.

Quoting the Article’s headline and the first two paragraphs:

“Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press

The Delhi high court yesterday restrained anyone from publishing or broadcasting the detailed sexual harassment allegationsagainst Swatanter Kumar, without stating prominently that they are “mere allegations”, as a battery of counsel appeared for the former Supreme Court judge in the court yesterday.

Justice Manmohan Singh also ordered the defendants – The Indian Express, Times Now and CNN-IBN – to remove certain articles and items from its archivesand restrained them from publishing Kumar’s photograph in connection to the story. CNN-IBN’s online sister publication FirstPost, has already removed images of Kumar from its website.” [emphasis ours]

The above summary of the Order is in line with our understanding that is set out in more detail in paragraph 2. above.

4. The Twitter posts you cite indeed reflect an initial, unintentional misreading of paragraph 64(a) of the order as only applying to the defendants. After that error was realised, we promptly deleted the erroneous Tweet and sent out a correction on Twitter within less than half an hour, according to the time line in your email.

The corrected Tweet in question, as you rightly point out, stated: “According to the order, ‘everyone’ will have to add ‘allegedly’ to headlines in the Swatanter Kumar # InternJudge stories”, reflecting the effect of the injunction in paragraph 64(a) of the order (our more detailed understanding is set out in paragraph 2. of this email, above). However, no Tweet made any reference to paragraphs 64(b) and (c) binding “everyone”.

The Article, which was published the following day, once we’ve had a chance to read the Order more carefully, summarised the Order along the same lines. The Article also clearly stated that paragraphs 64(b) and (c) only applied to the defendants (see the excerpts in paragraph 3. above).

Your claim that we had “express knowledge” that paragraphs (b) and (c) were binding on third parties, let alone that we believed in such an unreasonable interpretation, is false and is against all evidence.

5. We agree that we were aware of the limited restrictions contained in the Order and we always did and will continue to ensure that all our reporting in relation to the Order and your client remains fair.

6. We are aware of the restrictions the Order imposes on reporting, as outlined above, and will continue to ensure that we will not breach the Order, according to our understanding of it as outlined above and to the best of our ability.

7. You are correct that we have never denied that the pixellated photo published with the Article (the “Photo”) was originally a photograph of your client, before it was heavily pixellated and his identity was obscured.

If, for argument’s sake and contrary to our understanding of the Order as outlined in this email above, the injunction of 64(b) and (c) were binding on persons other than the defendants, the Photo was [digitally] manipulated and reasonably obscured to eliminate obvious identifying marks of your client.

We contend that it would have been impossible for anyone to identify your client from the Photo, except arguably if that person was already closely familiar with the original unaltered photograph of your client. To such persons, who already know what your client looks like, an injunction on publishing a photo, obscured or otherwise, is meaningless without an injunction also preventing the naming of your client.

Furthermore, the identity of your client in relation to the allegation was never in question, and the Order did not choose to restrict reporting of your client’s name. If someone were to want to see a photo of what your client looked like, they would be able to find it within seconds on any search engine.

You might, for example, like to look into an image search of the Google search engine for “Swatanter Kumar sex harassment allegation”, which returns more than 80,000 results and what must be dozens of images of your client, hosted on various websites:

https://www.google.co.in/search?q=swatanter+kumar+sex+harassment+allegation&tbm=isch

Ironically, Legally India has not used your client’s photo at all in any articles that covered the harassment allegations, except for the pixellated Photo published with the Article covering the Order.

In light of the above, please confirm whether you have also sent notices to any other media organisations or internet intermediaries to remove those photographs of your client, none of which appear to have been obscured.

8. In your email of Friday, you requested removal of “all photographs” and “offending material” from our website and Twitter feed, without specifying what material would be “offending”.

You also expressed faith in the “competence of [Legally India’s] editorial board” to “comprehend fully the true scope, meaning and import” and to act in accordance with the “letter and spirit” of the Order. You therefore declined to mark up the Article and left it for us to decide to remove what we found to be in violation of the Order.

The facts and interpretations outlined in this email represent the honest understanding of the Order by Legally India‘s editor and our advisers, and we therefore feel that no material or photographs published on Legally India were or are in violation of the Order’s letter and spirit.

We will therefore neither remove any content nor consider ourselves bound by paragraphs 64(b) and (c) of the Order.

If you disagree with this assessment, we would request a response from you within 24 hours, failing which we will assume that you agree with our interpretation of the Order.

Yours faithfully, 
Kian Ganz

…………….http://www.legallyindia.com/201401274282/Bar-Bench-Litigation/karanjawala-swatanter-kumar-email-counters

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Judgment obtained by fraud a nullity, rules Supreme Court:November 17, 2011

Bench revives FIR in corruption case against officials

A judgment obtained by fraud on court, without disclosing material facts relevant for adjudication, will become a nullity.

Giving this ruling, the Supreme Court set aside a Calcutta High Court judgment quashing an FIR against nine persons, including five officers of the Central Coalfields Ltd., for breach of contractual obligations and causing a wrongful loss of Rs. 90 lakh to the CCL. The other accused are the Coal Controller; Ramesh Gandhi and Mahesh Gandhi of the Continental Transport Construction Corporation and the CTCC.

Once it was established that the order was obtained by playing fraud, it would be vitiated and it was to be treated asnon estby every court, superior or inferior, held a Bench of Justices P. Sathasivam and J. Chelameswar.

Thus, “it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the court by not disclosing the necessary facts is impermissible.” Justice Chelameswar said writing the judgment.

Citing earlier decisions, the Bench said: “From these judgments it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has a larger dimension affecting the larger public interest.”

From the FIR, it was clear that the private company committed breach of obligations arising from two contracts it entered into with the CIL, and the officers failed to take penal action.

Whether the company failed to comply with legal obligations arising out of the contracts with Coal India or its subsidiaries would depend on the proof of the facts allegedly constituting the acts or omissions amounting to the breach of contracts on the part of the private company, the Bench said. To arrive at any conclusion on this question, it would require a detailed examination of the relevant material.

The Bench referred to the High Court judgment that since coal supplies were obtained on the basis of the orders passed by the High Court and approved by the Supreme Court no magistrate could decide whether any unjust pecuniary advantage occurred, and said: “The single judge of the High Court made an elaborate examination of the Indian legal system. In our opinion, the entire enquiry proceeded on a wrong premise that no examination, as to how a judgment of a superior court came into existence is permissible in the system of law which we follow.”

Allowing the appeal, the Bench said, “It is well known that decisions are rendered by courts on the basis of the facts pleaded before them and the issues arising out of the pleaded facts.” Citing a catena of decisions, the Bench held that the FIR could not be quashed on any of the grounds legally recognised by this court, and revived the FIR.

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SCI: It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud: August 22, 2013

Basawaraj & Anr.Appellants -Vs-The Spl. Land Acquisition Officer :
CIVIL APPEAL NO. 6975 of 2013

8. It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or fraud, even by
extending the wrong decisions made in other cases. The said 
provision does not envisage negative equality but has only a positive 

aspect. Thus, if some other similarly situated persons have been
granted some relief/ benefit inadvertently or by mistake, such an order
does not confer any legal right on others to get the same relief as well.
If a wrong is committed in an earlier case, it cannot be perpetuated.
Equality is a trite, which cannot be claimed in illegality and therefore,
cannot be enforced by a citizen or court in a negative manner. If an
illegality and irregularity has been committed in favour of an
individual or a group of individuals or a wrong order has been passed
by a Judicial forum, others cannot invoke the jurisdiction of the higher
or superior court for repeating or multiplying the same irregularity or
illegality or for passing a similarly wrong order. A wrong
order/decision in favour of any particular party does not entitle any
other party to claim benefits on the basis of the wrong decision. Even
otherwise, Article 14 cannot be stretched too far for otherwise it
would make functioning of administration impossible.
(Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr.,
AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana &
Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR

2006 SC 898; and Fuljit Kaur v. State of Punjab, AIR 2010 SC
1937).

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SCI Judgment in”Punish cops who file false charges” :20 Jan 2014

CJI P. Sathasivam & J. Chelameswar: January 20, 2014

New Delhi;
January 20, 2014.


Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.169 OF 2014
(Arising out of Special Leave Petition (Criminal) No.1221 of 2012)

Perumal …Appellant
Versus
Janaki …Respondent

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the High Court
of Madras, the unsuccessful petitioner therein preferred the instant
appeal.

3. A petition in C.M.P. No.4561 of 2010 (private complaint) under
section 200 of the Code of Criminal Procedure, 1973 (hereinafter for short
referred to as “the Cr.P.C.”) filed by the appellant herein against the
respondent came to be dismissed by the Judicial Magistrate No.2 at Pollachi
by his judgment dated 31st August 2010. Challenging the same, the
abovementioned Crl. R.C. was filed.

4. The factual background of the case is as follows:

5. The respondent was working as a Sub-Inspector in an All-Women Police
Station, Pollachi at the relevant point of time. On 18th May 2008, one
Nagal reported to the respondent that the appellant herein had cheated her.
The respondent registered Crime No.18/08 under sections 417 and 506(i) of
the Indian Penal Code (hereinafter for short referred to as “the IPC”).
Eventually, the respondent filed a charge-sheet, the relevant portion of
which reads as follows:
“On 26.12.07, that the accused called upon the de-facto complainant
for an outing and while going in the night at around 10.00 via
Vadugapalayam Ittori route the accused enticed the de-facto
complainant of marrying her and had sexual interaction several times
in the nearby jungle and on account of which the complainant became
pregnant and when she asked the accused to marry him he threatened the
complainant of killing her if she disclosed the above fact to anybody.

Hence the accused committed an offence punishable u/s. 417, 506 (i) of
IPC.”
[emphasis supplied]

6. The appellant was tried for the offences mentioned above by the
learned Judicial Magistrate No.1, Pollachi. The learned Judicial
Magistrate by his judgment dated 15th March 2010 acquitted the appellant of
both the charges.

7. It appears that the said judgment has become final.

8. In the light of the acquittal, the appellant filed a complaint
(C.M.P. No.4561 of 2010) under section 190 of the Cr.P.C. on the file of
the Judicial Magistrate No.2 at Pollachi praying that the respondent be
tried for an offence under section 193 of the IPC. The said complaint came
to be dismissed by an order dated 31st August 2010 on the ground that in
view of sections 195 and 340 of the Cr.P.C. the complaint of the appellant
herein is not maintainable.

9. Aggrieved by the said dismissal, the appellant herein unsuccessfully
carried the matter to the High Court. Hence the present appeal.

10. The case of the appellant herein in his complaint is that though
Nagal alleged an offence of cheating against the appellant which led to the
pregnancy of Nagal, such an offence was not proved against him. Upon the
registration of Crime No.18/08, Nagal was subjected to medical examination.
She was not found to be pregnant. Dr. Geetha, who examined Nagal,
categorically opined that Nagal was not found to be pregnant on the date of
examination which took place six days after the registration of the FIR.
In spite of the definite medical opinion that Nagal was not pregnant, the
respondent chose to file a charge-sheet with an allegation that Nagal
became pregnant. Therefore, according to the appellant, the charge-sheet
was filed with a deliberate false statement by the respondent herein. The
appellant, therefore, prayed in his complaint as follows;
“It is, therefore, prayed that this Hon’ble Court may be pleased
to take this complaint on file, try the accused U/s. 193 IPC for
deliberately giving false evidence in the Court as against the
complainant, and punish the accused and pass such further or
other orders as this Hon’ble court deems fit and proper.”

11. The learned Magistrate dismissed the complaint on the ground that
section 195 of the Cr.P.C. bars criminal courts to take cognizance of an
offence under section 193 of the IPC except on the complaint in writing of
that Court or an officer of that Court in relation to any proceeding in the
Court where the offence under section 193 is said to have been committed
and a private complaint such as the one on hand is not maintainable.

12. The High Court declined to interfere with the matter in exercise of
its revisional jurisdiction. The operative portion of the order under
challenge reads as follows:
“3. … This court is in agreement with the conclusion of the
court below in dismissing the complaint. The complaint provided
very little to take action upon, particularly, where this court
finds that the respondent had not in any manner tampered with the
medical record so as to mulct the petitioner with criminal
liability. The wording in the final report informing of the de
facto complainant having been pregnant can in the facts and
circumstances of the case, be seen only as a mistake.

4. In the result, the criminal revision stands dismissed.”

13. We regret to place on record that at every stage of this matter the
inquiry was misdirected.

14. The facts relevant for the issue on hand are that:-
(1) The appellant was prosecuted for the offences under sections 417
and 506 (i) IPC. (The factual allegations forming the basis of such a
prosecution are already noted earlier).

(2) The respondent filed a charge-sheet with an assertion that the
appellant was responsible for pregnancy of Nagal.

(3) Even before the filing of the charge-sheet, a definite medical
opinion was available to the respondent (secured during the course of
the investigation of the offence alleged against the appellant) to the
effect that Nagal was not pregnant.

(4) Still the respondent chose to assert in the charge-sheet that
Nagal was pregnant.

(5) The prosecution against the appellant ended in acquittal.

15. The abovementioned indisputable facts, in our opinion, prima facie
may not constitute an offence under section 193 IPC but may constitute an
offence under section 211 IPC. We say prima facie only for the reason this
aspect has not been examined at any stage in the case nor any submission is
made before us on either side but we cannot help taking notice of the basic
facts and the legal position.

16. The offence under section 193[1] IPC is an act of giving false
evidence or fabricating false evidence in a judicial proceeding. The act
of giving false evidence is defined under section 191 IPC as follows:
“191. Giving false evidence.— Whoever, being legally bound by an oath
or by an express provision of law to state the truth, or being bound
by law to make a declaration upon any subject, makes any statement
which is false, and which he either knows or believes to be false or
does not believe to be true, is said to give false evidence.

Explanation 1.—A statement is within the meaning of this
section, whether it is made verbally or otherwise.

Explanation 2.—A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may be
guilty of giving false evidence by stating that he believes a thing
which he does not believe, as well as by stating that he knows a thing
which he does not know.”

It can be seen from the definition that to constitute an act of giving
false evidence, a person must make a statement which is either false to the
knowledge or belief of the maker or which the maker does not believe to be
true. Further, it requires that such a statement is made by a person (1)
who is legally bound by an oath; (2) by an express provision of law to
state the truth; or (3) being bound by law to make a declaration upon any
subject.

17. A police officer filing a charge-sheet does not make any statement on
oath nor is bound by any express provision of law to state the truth though
in our opinion being a public servant is obliged to act in good faith.
Whether the statement made by the police officer in a charge-sheet amounts
to a declaration upon any subject within the meaning of the clause “being
bound by law to make a declaration upon any subject” occurring under
section 191 of the IPC is a question which requires further examination.

18. On the other hand, section 211 of the IPC deals with an offence of
instituting or causing to be instituted any criminal proceeding or falsely
charging any person of having committed an offence even when there is no
just or lawful ground for such proceeding to the knowledge of the person
instituting or causing the institution of the criminal proceedings.

19. Irrespective of the fact whether the offence disclosed by the
complaint of the appellant herein is an offence falling either under
section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares that no
Court shall take cognizance of either of the abovementioned two offences
except in the manner specified under section 195 of the Cr.P.C.:
“195. Prosecution for contempt of lawful authority of public servants,
for offences against public justice and for offences relating to
documents given in evidence.—(1) No Court shall take cognizance—

x x x x x

(b) (i) of any offence punishable under any of the following
sections of the Indian Penal Code (45 of 1860), namely, sections
193 to 196 (both inclusive), 199, 200, 205 to 211 (both
inclusive) and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any Court, or

except on the complaint in writing of that Court or by such officer of
the Court as that Court may authorise in writing in this behalf, or of
some other Court to which that court is subordinate.”

20. In the light of the language of section 195 Cr.P.C. we do not find
fault with the conclusion of the learned Magistrate in dismissing the
complaint of the appellant herein for the reason that the complaint is not
filed by the person contemplated under section 195 Cr.P.C. It may be
mentioned here that as a matter of fact the Court before which the instant
complaint was lodged is not the same Court before which the appellant
herein was prosecuted by the respondent.

21. Under section 340(1) of the Cr.P.C., it is stipulated that whenever
it appears that any one of the offences mentioned in clause (b) of sub-
section (1) of section 195 appears to have been committed in or in relation
to a proceeding before a Court, that Court either on an application made to
it or otherwise make a complaint thereof in writing to the competent
Magistrate after following the procedure mentioned under section 340 of the
Cr.P.C.[2]

22. Admittedly, the appellant herein did not make an application to the
judicial magistrate No.1, Pollachi under section 340 to ‘make a complaint’
against the respondent herein nor the said magistrate suo moto made a
complaint. Therefore, the learned judicial magistrate No.2 before whom the
private complaint is made by the appellant had no option but to dismiss the
complaint.

23. But the High Court, in our view, is not justified in confining itself
to the examination of the correctness of the order of the magistrate
dismissing the said private complaint. Both Section 195(1) and Section
340(2) Cr.P.C. authorise the exercise of the power conferred under Section
195(1) by any other court to which the court in respect of which the
offence is committed is subordinate to. (hereinafter referred to for the
sake of convenience as ‘the original court’)

24. It can be seen from the language of Section 195(4), Cr.P.C. that it
creates a legal fiction whereby it is declared that the original court is
subordinate to that court to which appeals ordinarily lie from the
judgments or orders of the original court. (hereinafter referred to as ‘the
appellate court’) In our view, such a fiction must be understood in the
context of Article 227[3] of the Constitution of India and Section 10(1)
and 15(1) of Cr.P.C[4]. Article 227 confers the power of superintendence on
a High Court over all courts and tribunals functioning within the
territories in relation to which a High Court exercises jurisdiction.
Section 10(1) and 15(1) of Cr.P.C. declare that the Assistant Sessions
Judges and Chief Judicial Magistrates are subordinate to the Session Judge
and other Judicial Magistrates to be subordinate to the Chief Judicial
Magistrate subject to the control of the Session Judge. It may be
remembered that Section 195(4) deals with the authority of the superior
courts in the context of taking cognizance of various offences mentioned in
Section 195(1). Such offences are relatable to civil, criminal and revenue
courts etc.[5] Each one of the streams of these courts may have their
administrative hierarchy depending upon under the law by which such courts
are brought into existence. It is also well known that certain courts have
appellate jurisdiction while certain courts only have original
jurisdiction. Appellate jurisdiction is the creature of statute and
depending upon the scheme of a particular statute, the forum of appeal
varies. Generally, the appellate for a are created on the basis of either
subject matter of dispute or economic implications or nature of crime etc.

25. Therefore, all that sub-section (4) of Section 195 says is that
irrespective of the fact whether a particular court is subordinate to
another court in the hierarchy of judicial administration, for the purpose
of exercise of powers under Section 195(1), every appellate court competent
to entertain the appeals either from decrees or sentence passed by the
original court is treated to be a court concurrently competent to exercise
the jurisdiction under Section 195(1). High Courts being constitutional
courts invested with the powers of superintendence over all courts within
the territory over which the High Court exercises its jurisdiction, in our
view, is certainly a Court which can exercise the jurisdiction under
Section 195(1). In the absence of any specific constitutional limitation
of prescription on the exercise of such powers, the High Courts may
exercise such power either on an application made to it or suo moto
whenever the interests of justice demand.

26. The High Courts not only have the authority to exercise such
jurisdiction but also an obligation to exercise such power in appropriate
cases. Such obligation, in our opinion, flows from two factors – (1) the
embargo created by Section 195 restricting the liberty of aggrieved persons
to initiate criminal proceedings with respect to offences prescribed under
Section 195; (2) such offences pertain to either the contempt of lawful
authorities of public servants or offences against public justice.

27. A constitution Bench of this Court in Iqbal Singh Marwah & Anr. v.
Meenakshi Marwah & Anr., (2005) 4 SCC 370, while interpreting Section 195
Cr.P.C., although in a different context, held that any interpretation
which leads to a situation where a victim of crime is rendered remediless,
has to be discarded[6]. The power of superintendence like any other power
impliedly carries an obligation to exercise powers in an appropriate case
to maintain the majesty of the judicial process and the purity of the legal
system. Such an obligation becomes more profound when these allegations of
commission of offences pertain to public justice.

28. In the case on hand, when the appellant alleges that he had been
prosecuted on the basis of a palpably false statement coupled with the
further allegation in his complaint that the respondent did so for
extraneous considerations, we are of the opinion that it is an appropriate
case where the High Court ought to have exercised the jurisdiction under
Section 195 Cr.P.C.. The allegation such as the one made by the
complainant against the respondent is not uncommon. As was pointed earlier
by this Court in a different context “there is no rule of law that common
sense should be put in cold storage”[7]. Our Constitution is designed on
the theory of checks and balances. A theory which is the product of the
belief that all power corrupts – such belief is based on experience.

29. The appeal is, therefore, allowed. The matter is remitted to the
High Court for further appropriate course of action to initiate proceedings
against the respondent on the basis of the complaint of the appellant in
accordance with law.
………………………………………..CJI
(P. Sathasivam)
…………………………………..……J.
(J. Chelameswar)

New Delhi;
January 20, 2014.
———————–Judgment …. Ends………
[1] Section 193. Punishment for false evidence.—Whoever intentionally
gives false evidence in any stage of a judicial proceeding, or fabricates
false evidence for the purpose of being used in any stage of a judicial
proceeding, shall be punished with imprisonment of either description for a
term which may extended to seven years, and shall also be liable to fine,

and whoever intentionally gives or fabricates false evidence in any
other case, shall be punished with imprisonment of either description for a
term which may extended to three years, and shall also be liable to fine.

Explanation 1.—A trial before a Court-martial; is a judicial
proceeding.

Explanation 2.—An investigation directed by law preliminary to a
proceeding before a Court of Justice, is a stage of a judicial proceeding,
though that investigation may not take place before a Court of Justice.
[2] Section 340. Procedure in cases mentioned in section 195.—(1) When
upon an application made to it in this behalf or otherwise, any Court is of
opinion that it is expedient in the interests of justice that an inquiry
should be made into any offence referred to in clause (b) of sub-section
(1) of section 195, which appears to have been committed in or in relation
to a proceeding in that Court or, as the case may be, in respect of a
document produced or given in evidence in a proceeding in that court, such
Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magi?
———————–
16

SOURCE – http://judis.nic.in/supremecourt/imgst.aspx?filename=41160

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Take action against cops who file false charges: SC

The Supreme Court of India has ruled that police officers are liable for prosecution on being found guilty of filing false charges against any individual despite knowing his or her innocence.

police officer will be liable for prosecutionon being found to have filed false charges against an individual despite being aware of his/her innocence, ruled the Supreme Court on Thursday.

The judgment clearly shows that cops and prosecutors are on the radar of the judiciary. It is worth mentioning that barely a couple of weeks back, the court had asked the administration to initiate strict actions against prosecutors and investigating officers whose deliberate lapses lead to acquittal of accused in serious offences.

A bench comprising of Chief Justice P Sathasivam and Justice J Chelameswar ruled that police must not be allowed to take shelter behind the logic that they had no other option but to file charges against an alleged sexual offender even if evidence hints towards his innocence.

The court made the observation while hearing a case involving an all-women police station in Tamil Nadu. Apparently, on May 28, 2008, one Nagal filed a complaint against an individual accusing him of sexually exploiting her on the pretext of marriage. The complainant also claimed that the accused threatened to kill her when she had told him about her pregnancy.

However, to his utter shock, the accused was chargesheeted even after medical examination had established that the woman was faking pregnancy. He was, however, acquitted by the Pollachi judicial magistrate.

After his acquittal, the man filed a case against the woman sub-inspector in charge of the case, but only to be disappointed by first a trial court, and then by the Madras High Court.

However, the Supreme Court of India came in rescue for him with the landmark judgment that said:”In the case on hand, when the appellant alleges that he had been prosecuted on the basis of a palpably false statement coupled with the further allegation in his complaint that the woman SI did so for extraneous considerations, we are of the opinion that it is an appropriate case where the high court ought to have exercised jurisdiction under Section 195 of Criminal Procedure Code.”

“The allegation such as the one made by the complainant against the policewoman is not uncommon. As was pointed earlier by this court in a different context, ‘there is no rule of law that common sense should be put in cold storage’. Our Constitution is designed on the theory of checks and balances. A theory which is the product of the belief that all power corrupts – such belief is based on experience,” the apex court added.

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