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Complaint w.r.t offence u/s 182 of the IPC not maintainable without compliance with Section 195 of the CrPC rules the Supreme Court

False information has been plaguing the original discourse of natural justice since time immemorial. A prosecution, in fact, built on false information denies the accused the right to a fair trial. Keeping the view in mind of the extensively used phrase of “innocent until proven guilty”, it can be effectively observed that false information defeats the tunnels of justice accessible to the accused when he is fighting an uphill battle against fabricated information furnished against him. Evidently, there arose a need to mitigate such factors, which materialized only during the transposition of the criminal laws of England in the Indian context around the time when Indian Penal Code was drafted. The long-standing use of the IPC is a testament that the principles of criminal law are universal, however what is not consistent, is the various modes of interpretation of the principles.

In the present article we shall look into the provisions incriminating false information provided to a public servant and the procedural technicalities which the court shall encounter while taking cognizance of the matter. Further, it is called for to delve into the difference between the instance where false information has been furnished to the police and the instance where criminal proceedings have been initiated on account on false information.

 

Offence u/S 182

Prior to pondering into the complexities, it is important to familiarize with the relevant laws. Sections 177 to 188 of the IPC deal with the provision of false information. The specific provision that we shall be adhering to is S. 182 which incriminates the act of providing false information to a public servant. It reads as follows:

182. False information, with intent to cause public servant to use his lawful power to the injury of another person.—Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both

On a fine reading of the above provision, we can disseminate it into two parts:
• Knowledge of the informer that the information was false;
• Gives rise to cause of action through the public servant.

Thus, it may be construed that the offence is complete only when the concerned person has invoked the authority of the public servant.

On having covered the provision blanketing the false information to a public servant, it is vital to set out the difference between the former and criminal proceedings already instituted on account of false information. S. 211 covers the latter instance which reads out as follows:

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death [or imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine

Although both S.182 and S.211 incriminate the offence of rendering false information, they have an application at different stages. To elaborate upon it, let us consider the case of State v Bala Prasad [1], wherein it was held that:

The question whether information of this nature falls under Section 211 or under Section 182, Indian Penal Code has been the subject of debate in various High Courts and the view is not unanimous. The Bombay High Court had held that criminal law makes a clear distinction between a false charge which comes under Section 211 and false information given to the police, which comes under Section 182. The distinction has been drawn in this manner: “If the information conveyed to the police amounts to the false institution of criminal proceedings against a defined person or amount to the falsely charging of a defined person with an offence, then the person giving such information is guilty of an offence under Section 211.

While arriving at the above reasoning, the bench referred to the Apaya Tatoba v. Emperor [2], emerging from the pre-independence era. Nonetheless, the difference had been formalized that Section 182, when read with -S. 211, must be understood as referring to cases where the information given to the public servant falls short of amounting to an institution of criminal proceedings against a defined person and falls short of amounting to the falsely charging of a defined person with an offence.

 

The nexus between S. 182 IPC and S.195 Cr.P.C

Though there provisions are present in abundance to prosecute for the offence of giving false information, there is a bar on the court taking cognizance of all such matter as manifested through S. 195 of the Cr.P.C., which reads as follows:

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-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate

If S.182 of IPC and S. 195 are read conjointly, it is clear that an offence u/s 182 of the IPC is essentially viewed as an offence against public justice and wrongful invocation of authority of Public Servant and therefore, it is not open for a prosecution to be initiated by a private person. The only way for a court to take cognizance of an offence like S.182 of the IPC is on a complaint in writing by a public servant. Further it stands undisputed as to who is the public servant concerned when the prosecution under Section 182 of the Indian Penal Code is for giving false information to a public servant with particular intent. The ‘public servant concerned’ meant in Section 195 (1) (a), Cr.P.C. can only be the public servant to whom the false information is given.This stands affirmed in the case of Daulat Ram v. State of Punjab [3], wherein it was held that,

There is an absolute bar against the court taking seisin of the case under Section 182 IPC except in the manner provided by Section 195 CrPC. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under Section 182 is complete when a person moves the public servant for action. Where a person reports to a Tahsildar to take action on averment of certain facts, believing that the Tahsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tahsildar, as the public servant concerned under Section 182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tahsildar’s complaint in writing is, therefore, without jurisdiction ab initio.”

Further in the case of Saloni Arora v. State, the State prosecuting agency sought to prosecute the appellant for commission of an offence punishable under Section 182 IPC. The appellant felt aggrieved of this action of the prosecuting agency, filed an application for her discharge on the ground that since no procedure as contemplated under Section 195 of the Cr.P.C was followed by the prosecution, the appellant cannot be prosecuted for such offence.

The court held that, “It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in Daulat Ram.” [4]

 

The conflict between S. 182 IPC and S.195 Cr.P.C

Thus, it stands settled that only a public servant may initiate proceedings u/S 182 IPC as per the procedure entailed u/S 195 of the Cr.P.C. This call for a concerted action however poses a temporal burden. As it is, we are quite that the Indian judicial system is rampant with delays in all aspects of a case proceeding. Further the task of resorting to S.195 creates an impediment with the registration of FIR for the offence u/S 182 IPC. Ultimately, the hindrances culminate in the delay in justice.

One logical way to approach this conflict is that the concerned police officer can treat the written complaint submitted by the public servant to the Magistrate/ an informal complaint given to the police officer himself as FIR and start a preliminary investigation and keep the findings with himself. When the court orders inquiry/ investigation into the matter, only then can he provide his findings to the court.

However, in the current situation when the courts are not fully functional it is not possible for the concerned public servant to approach the court to submit the complaint in writing. The public servant in such a case may give an informal complaint to the police. Thus in those cases where the public servant chooses to approach the police first, it may be the case that police prepares a preliminary informal report of the investigation of the matter. Now, when it becomes practically possible to approach the court, the public servant can give the formal complaint in writing as per Section 195(1)(a) CrPC along with the findings of the informal preliminary investigation if any.

Here the informal preliminary investigation done by the police right after having received an informal complaint is better than the investigation done in the regular process considering the importance of time. The problem is that being a complainant and an investigator for the police may lead to an argument that the police are biased. But this need not be the case because the ultimate authority lies with the court to decide on the matter.

The administratively superior authority mentioned in Section 195(1)(a) can supervise the same and can prevent any such arbitrariness and unfairness. Even if there remains any irregularity then the court is empowered enough to reject the findings of the investigation and order a fresh investigation. This way both the provisions can operate together rather than one being operative to the exclusion of others. A harmonious interpretation has been a very important rule of interpretation that allows both the conflicting provisions to operate. [5]

The Madras High Court held in Jeevanandham v State [6], that since cognizance under Section 195 is to be taken on a complaint in writing for an offence under Section 188 IPC, the police should not register an FIR under Section 188 IPC because the same would lead to a police report. This is an exercise in futility as a complaint does not include a police report as per Section 2 (d) of the Cr.P.C. Further, the court stated that in a case under Section 188 IPC the Police officer has the power to take action under Section 41 of Cr.P.C as a matter of preventive action, once the procedure enumerated under Section 195 (1)(a) of Cr.P.C is followed. This was reiterated in the case of R Anand Sekaran vs State through the Inspector of Police Tuticorin [7].

As a logical corollary, we may draw a parallel between S.188 and S. 182 since both the offences belong to the same species. The case cited above may also be applied to S.182, wherein the Court also takes cognizance of the matter through the letter of a public servant. Thus, the act of registering an FIR for the offence u/S 182 stands futile.

 

Conclusion

Although, the provisions may seem to be in direct contravention and in certain complex factual matrices will be in juxtaposition, it is paramount to remember that the object of S.195 Cr.P.C is only to facilitate a smoother operation of S.182. As noted in the case of Jeevanandham :

The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution.

Therefore, in light of the discussions above, we may conclude that both sections need to be construed harmoniously to give way for natural justice.

[1] AIR 1952 Raj 142

[2] 14 Cri L J 491 (Bom)

[3] AIR 1962 SC 1206

[4] NCT of Delhi), (2017) 3 SCC 286

[5] https://www.theleaflet.in/the-conflict-between-section-188-ipc-and-section-195-crpc/

[6] Crl. OP (MD) No. 1356 of 2018

[7] 2019 Indlaw MAD 5177

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