S. Dutt Dr v. State Of U.P .

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 — ST No. 60 of 1957) in the Court of Additional Sessions Judge, Hardoi. Dr Dutt claimed to hold a diploma from the Imperial College of Science and Technology, London to the effect that he had specialised 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 (CID), 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 produced the aforesaid diploma and it was taken on file as Ex. P-71 together with a statement which was marked Ex. P-72. The Sessions Judge pronounced judgment on October 29, 1957 acquitting Matadin and the other accused. He passed strictures on the prosecution and did not accept the evidence of Mr Shyam Narain. Government did not appeal against the acquittal and that matter ended there.

2. On November 12, 1957 prosecution applied to the Sessions Judge under Section 195 of the Code of Criminal Procedure for the prosecution of Dr Dutt under Section 193 of the Indian Penal Code. It was stated in the application that “the Defence Witness 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, Hardoi alleging that Dr Dutt had committed an offence under Section 466/477 (subsequently changed to Section 465/471 of the Indian Penal Code in the Court of the Additional sessions Judge, Hardoi while giving evidence in Sessions trial State v. Matadin. 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 them as genuine”. On October 26, 1958 a charge-sheet under Section 465/471of the Indian Penal Code was filed against Dr Dutt in the Court of the Judicial Officer III, Hardoi by the CID, Police, Lucknow.

3. The case went before the Additional District Magistrate (Judicial), Hardoi on transfer and at the commencement of the trial Dr Dutt objected that he could not be legally prosecuted as the alleged facts disclosed and offence under Section 193 of the Indian Penal Code and a complaint in writing of the court was required under Section 195 of the Code of Criminal Procedure before cognizance could be taken. Dr Dutt also contended that Sections 465/ 471 did not apply to the alleged facts and that the prosecution was attempting to evade the provisions of Section 195 of the Code of Criminal Procedure. During arguments on his petition Dr Dutt also claimed that Section 196 and not Section 471 of the Indian Penal Code applied to the facts of the case and that even that offence required that the procedure of Section 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 Sections 465/471 of the Indian Penal Code. The Additional District Magistrate (Judicial) rejected the contentions of Dr Dutt and held that there was no bar to the trial under Section 465/471 of the Indian Penal Code. Dr Dutt filed revisions against the order in the Court of Sessions and in the High Court but without success. The order of the High Court was pronounced on February 12, 1965 and the present appeal is against that order.

4. Section 195 of 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 Sections 193 to 196, 199 and 200 of the Indian Penal Code. Section 195 further provides that prosecution for any offence of forgery described in Section 463 or of using a forged document as genuine punishable under Section 471, Section 475 or Section 476 of the 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 Section 463 IPC and of using such forged documents, if produced or given in evidence by a person other than a party to a proceeding in a court, do not require a complaint in writing of the court concerned, but prosecution in respect of offences under Sections 193 to 196, 199 and 200 (among others) committed in a judicial proceeding by a person (whether a party or not) requires a complaint in writing of the court before which the offence is committed or of some other court to which such court is subordinate. It is this difference which has apparently induced the selection of Sections 463/471 rather than Sections 193/196 of the Indian Penal Code. The former do not require a complaint by the court but the latter do, and this is the main point of controversy before us also.

5. Mr Chari for Dr Dutt first draws attention to certain observations of this Court in Basir-ul-Huq v. State of West Bengal and Nur-ul-Huda v. State of West Bengal 1963 SCR 836 at 842 where it is observed that Section 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 andessentially 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 evaded by 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 of the Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offencecovered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.”

Mr Chari concedes that Section 195(1)(c) of the Code of Criminal Procedure would not bar the present prosecution of Dr Dutt if the offence fell within Section 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 Section 465 nor under Section 471, but one under Section 193 or 196 of the Indian Penal Code for which the procedure of Section 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.

6. Sections 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 false documents and their use. Sections 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.

7. 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 part 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.

8. 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 extend 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 any 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 Sections 465/471 of the Indian Penal Code.

9. Before we analyse these sections 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 claimed 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 circumstance 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 Section 191 or of fabricating false evidence described in Section 192 is punishable under Section 193 with imprisonment which may extend to seven years and fine, if the evidence is given or fabricated to be used in any stage of judicial proceeding. Section 196 next provides:

“196. Whoever corruptly uses 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 Sections 193 and 196 of the 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 Section 193 but the court declined to file a complaint.

10. 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 Section 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 Section 471 requires a user to be either fraudulent, dishonest or both, Section 196 is satisfied if the user is corrupt. The Penal Code defines the expressions fraudulently and dishonestly but not the expression corruptly.

11. We shall now attempt to apply the two groups of offences contained in Chapter Xl 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 Section 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 proceedings. 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 Section 192. When Dr Dutt deposed, let us assume falsely about his training, he committed an offence under Section 193. Again, when Dr Dutt used 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. King ILR (1949) 2 Cal 440 Mr Justice Sen dealt at length with this word. He was contrasting Section 196 with Section 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.

12. It would thus be seen that the action of Dr Dutt was covered by Sections 192 and 196 of the Penal Code. If Dr Dutt gave false evidence in court or if he fabricated false evidence the offence under Section 193 was clearly committed. If he used fabricated evidence an offence under Section 196 was committed by him. These offences would have required a complaint in writing of the Sessions Judge before cognizance could be taken.

13. 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 then 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 Section 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 Section 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 matter of some doubt whether he can be said to have used the diploma because he did not voluntarily bring the diploma to court. There is authority to show that such a user is not contemplated by Section 471 of the Indian Penal Code (See Assistant Sessions Judge North Arcot v. Ramammal and Ma Ain Lon v. Ma On Nu (1925) Rangoon 191. Even if one were to hold that he did use the document as genuine his intention in producing it was to support his statement and not to cause a wrongful gain to himself or to cause a wrongful loss to another. This part of the section does not apply. The next question is whether his conduct can be said to be fraudulent. The word “fraudulently” is defined by Section 25 of the Penal Code. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The last three words “but not otherwise” clearly indicate that the intent must be an “intent to defraud”. This expression has given a great deal of trouble as the rulings show. It may be pointed out that in the Larceny Act of 1861 and in the Companies Act of 1862 in England the expression was “with intent to deceive or defraud”, while in the Forgery Acts the words “with intent to defraud” alone were used. The reason was that documents were divided into two: public documents and private documents. In the case of public document it was enough if the intention was merely to deceive but in the case of private documents such an intention was not considered sufficient but “an intent to defraud” was required. The distinction between the two expressions was made by Lord Buckley (then Buckley, J) in a winding up case as follows:

“…To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive 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 state of mind; to defraud is by deceit 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 “deprive 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 by means of deceit or merely the inducing of a person to act against his own interests has been much debated. The House of Lords in Welham v. Director of Public Prosecutions (1961) AC 103 ruled that it is not necessary that there must be an intention to cause an economic loss. The decision of the House of Lords has seen criticized by the editor 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 Cambridge 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 indicate not a bare intent to deceive but an intent to cause a person to act or omit to act, as a result of deception played upon him, to his disadvantage. This is the most extensive meaning that may be given to the expression “with intent to defraud” in our Penal Code and the words “but not otherwise” clearly show that the words “intent to defraud” are not synonymous with the words “intent to deceive” and require some action resulting in some disadvantage which but for the deception, the person deceived would have avoided.

14. In the light of the above discussion we shall now see how the conduct of Dr Dutt fits in with Section 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 have intended a deception he did not intend defrauding. His conduct was perhaps corrupt in the larger sense for he intended that the Sessions Judge should form an erroneous opinion about him, and his testimony, as he continued to claim the document as genuine.

15. We are, therefore, satisfied that Dr Dutt's conduct does not come within Section 471. On the other hand, it falls within Section 196 which casts its net wider in the interest of the purity of administration of justice. It may be noted that an offence under Section 196 of the Penal Code is a far more serious offence than the offence under Sections 465/471. The former is punishable with imprisonment upto seven years and fine while the latter is punishable with imprisonment upto two years or with fine.

16. 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 Section 195 of the Code of Criminal Procedure. If the offence was under Section 196 of the 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 Sessions Judge who had earlier decided that Dr Dutt should not be prosecuted for perjury. Such a device is not to be commended. In our opinion, the offence in the present case did not fall within Sections 465/471 IPC and the prosecution launched against Dr Dutt cannot be allowed to go on.

17. In the result the appeal succeeds and is allowed.