SHYNI VARGHESE & ORS. v. STATE (GOVT. OF NCT OF DELHI) & ANR.

through: Ms. Mukta Gupta, Standing Counsel for the State with Mr. Rajat Katyal and Ms. Rajdipa Behura, Advocates. CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL Whether reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Whether judgment should be reported in Digest? REVA KHETRAPAL, J The petitioners seek issuance of an appropriate writ/order/direction in the nature of prohibition quashing the orders dated 8th June, 2006 and 4th November, 2006 passed by the learned ACMM, New Delhi in case FIR No.305/2006, Police Station Sarita Vihar, New Delhi.

2. The facts leading to the filing of the present writ petition are as follows: On 01.02.2006, FIR No.104/2006 was registered under Sections 19, 21A, 25, 27 and 29 NDPS Act against Rahul Mahajan and others by Police Station Tughlaq Road, New Delhi. On 08.06.2006, an application was filed by the SHO, Inspector Madanjit Singh, Police Station Tughlaq Road in the Court of the learned ACMM for the registration of a case under Section 182 IPC against the doctors and management of Apollo Hospital, wherein it was stated that since the offence under Section 182 IPC was a non-cognizable offence and the W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 3 of 49 39/07, 56/07, 438/07 and 634/07 police cannot enter into investigation of such an offence suo moto, permission for investigation of the case under Section 182 IPC may be given.

3. On the above application, Dr. Kamini Lau, ACMM, New Delhi passed the following order: “IN THE COURT OF DR. KAMINI LAU: ACMM: NEW DELHI. State Vs.

8.6.06 Doctors & Management of Indraprastha Apollo Hospital Fresh complaint has been placed before me by SHO Police Station, Tuglak Road. The same is directed to be checked and registered. Present: Insp. Madanjit Singh, SHO, PS Tuglak Road, alongwith Ms. Suman Nalwa, ACP, PS Chankya Puri. An application has been filed by SHO Police Station Tuglak Road, Inspector Madanjit Singh the complainant seeking appropriate orders from this court for the purpose of registration of case u/s. 182 IPC against the Doctors and Management of Indraprastha Apollo Hospital, New Delhi. According to the complainant during the investigation in case FIR No.104/06 dated 3.6.06 under Section 21/25/27/29 of Narcotics Drugs and Psychotropic Substances Act read with 201/34 Indian Penal Code it was revealed that the doctors and management of the Apollo Hospital has mislead the investigating agency by fabricating and manipulating their records with an intent to harbour and help accused involved in the case to escape from law. The complainant has submitted that information to the local police had been delayed and there is tempering and overwriting in the entries of admission in respect of time and sequence of accused as observed from the casualty register of the hospital. He has also submitted that the doctors and management of the Apollo Hospital has deliberately given false information regarding the toxicity suffered by accused which has been done with an intent to mislead the investigating agency so as to prevent the investigating officer from taking recourse in law vis-a-vis the accused persons involved in the case. The complainant Insp. Madanjit Singh, has also submitted that he apprehends that the relevant records i.e. the Casualty Register, MLC Register and Pathological report of the hospital may be further tampered due to which reasons he W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 4 of 49 39/07, 56/07, 438/07 and 634/07 also requests for directions to the Investigating Officer for seizure of the above records. I have gone through the investigation file and the copy of the medico legal report of Rahul Mahajan. The said report shows that at the time when he was admitted in the hospital he was unconscious and gasping whereas during the shifting his vitals have been found to be stable and conscious. I have also gone through the forensic Science Laboratory Report and the Discharge Summary. The complainant has pointed out that the timings mentioned on the FSL report and on the MLC/Discharge Summary are not matching with the Casualty Register and the other relevant records maintained in the hospital and he apprehends further tampering. As per the Provision of Section 155 Code of Criminal Procedure provides that ..............“when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the information to the Magistrate. No Police Officer shall investigate a non cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non cognizable. The underlying policy of the Legislature in making certain offences non-cognizable is to ensure that persons are not put to harassment of the investigations against them. The object of Legislature is of caution against the indiscriminate use of the police agency for ascertaining the facts regarding which the Magistrate is bound to form his own conclusions on the basis of material before him. In in case on the basis of the information received, the Magistrate is of the view that the information does not make out an offence, then no order under Sub-Section 2 of Section 155 can be passed. The offence alleged is under Section 182 IPC is non- cognizable and no investigations can commence suo-moto without a specific order from this court u/s 155 of the Code of Criminal Procedure. I have gone through the information placed before me by the complainant Insp. Madanjit Singh are also the W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 5 of 49 39/07, 56/07, 438/07 and 634/07 material on the Investigation file of case FIR No.104/06 of Police Station Tuglak Road. The allegations made by the complainant prima facie disclose the commission of offence and in order to ascertain if the same are correct or not, investigations are required to be conducted. The copy of the complaint of the SHO Police Station Tuglak Road is being sent to the concerned SHO Police Station Sarita Vihar for investigations. In so far the request of the complainant for allowing the search and seizure is concerned, I am of the view that the same would be the prerogative of the Investigating Officer who would be at liberty to proceed as per the procedure prescribed under Chapter VII of the Code of Criminal Procedure. A copy of this order be sent to the SHO PS Sarita Vihar alongwith the copy of the complaint and relevant documents for necessary action under intimation to this court. Announced in the open court 8.6.06 sd/- (D.Kamini Lau) ACMM: New Delhi”

4. Pursuant to the above order, a First Information Report bearing No.305/2006 under Section 182 IPC was registered by the police of Police Station Sarita Vihar and investigation commenced against the doctors and management of the Apollo Hospital. On 30th October, 2006, a charge-sheet in FIR No.305/2006 under Sections 182/201/109/114/120-B IPC, Police Station Sarita Vihar was filed in the Court of the learned ACMM, New Delhi. The said charge-sheet was accompanied by a copy of the FIR alongwith the complaint submitted by the complainant on 8th June, 2006 and was also accompanied by a formal complaint dated 30th October, 2006 under Section 195 Cr.P.C. by the same complainant, i.e., Inspector Madanjit Singh of Police Station Tughlaq Road.

5. On consideration of the charge-sheet, the complaint of Inspector Madanjit Singh and the documentary evidence gathered in the course of W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 6 of 49 39/07, 56/07, 438/07 and 634/07 investigation, the ACMM passed the order dated 04.11.2006, taking cognizance of the offences under Sections 182/201/109/114/120-B IPC and also suo moto cognizance of the offences under Sections 177 and 193 IPC. The order dated 4th November, 2006, the quashing of which is sought in the present writ petition, reads as follows: “IN THE COURT OF SMT. KAMINI LAU, ACMM, PATIALA HOUSE COURTS, NEW DELHI. State vs. Harish Sharma etc. FIR No.305/2006 P.S. Sarita Vihar

4.11.2006 Fresh charge sheet has been filed on 1.11.2006. It be checked and registered as per rules. Present: APP for the State alongwith I.O. Inspector Sushil Chandra Sharma and Supervisory Officer ACP Dr. B.B. Choudhary. the Investigating Officer i.e. After having considered the material on record and having heard the Investigating Officer, this Court is of the opinion that not only the provisions which have been invoked under Section 182/201/109/114/120-B IPC but also the provisions under Section 177 and 193 IPC should have been invoked since there is sufficient material on record to show that all the accused persons were under legal obligation to furnish correct information with regard to the accused persons. Further as per the material on record not only have the accused conspired to destroy the evidence but they have tried to fabricate false evidence for the purpose of being used in the judicial proceedings. Vide my separate detailed order dictated and announced in the open Court I take cognizance for the offence under Section 177/182/193/201/109/114/120-B IPC as against all the accused persons including the accused kept in column no.2 i.e. Harish Sharma and accused mentioned in column no.4 i.e Mrs. Raji Chandru, Dr.Mukund Pandey, Dr. Ali Mohmd. Ganani, Mohmd. Akram, Ms. Nisha Anna Chacko, Ms. Shyni Verghese, Dr. Prasad Rao, Dr. Awdesh Bansal, Dr. Abha Gupta, Ms. Dilna John, Ms. Sheerin Sara Chacko, Dr. Anupam Sibal and Mr. Sidhanshu Mittal. Issue summons against all the accused persons to the W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 7 of 49 39/07, 56/07, 438/07 and 634/07 Investigating Officer for 12.1.2007. sd/- ACMM 4.11.2006 IN THE COURT OF SMT. KAMINI LAU, ACMM, NEW DELHI State vs. Harish Sharma etc. FIR No.305/2006 P.S. Sarita Vihar ORDER On the complaint of Inspector Madanjeet Singh, the Investigating Officer Inspector Sushil Chandra Sharma has filed the fresh charge sheet today against the 14 accused of which the accused Harish Sharma has been kept in column no.2 and accused Mrs. Raji Chandru, Dr.Mukund Pandey, Dr. Ali Mohmd. Ganani, Mohmd. Akram, Ms. Nisha Anna Chacko, Ms. Shyni Verghese, Dr. Prasad Rao, Dr. Awdesh Bansal, Dr. Abha Gupta, Ms. Dilna John, Ms. Sheerin Sara Chacko, Dr. Anupam Sibal and Mr. Sidhanshu Mittal who had been kept in column no.4 for the offence under Section 182/201/109/114/120-B IPC. I have gone through the material on record. It is a settled proposition of law as laid down by the Hon'ble Supreme Court in the case of M/s Swill Industries Ltd. vs. State of Delhi reported in 2001 Crl. LJ 4173 and in the case of Raghubans Dubey vs. State of Bihar reported in AIR 1967 SC 1167 that: “It is the duty of the Magistrate to find out who the offenders really are and once it comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against these persons. The summoning of the additional accused is part of the proceeding initiated by his taking the cognizance of an offence”. In the present case the Investigating Officer has only invoked the provisions of Section 182/201/109/114/120-B IPC. As per the allegations, on the intervening night of 1.6.2006 and 2.6.2006 Rahul Mahajan and Bibek Moitra had a champagne party and consumed alcohol. Later they had taken drugs which they had procured with the help of one Sahil Zaroo. They were seen lying in an unconscious state on the sofa and froth was coming out of the mouth of Bibek Moitra. Servant Ganesh Kumar Sinha brought the matter to the notice of Harish Sharma who in turn directed Ganesh to take both Bibek Moitra and Rahul Mahajan to Apollo W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 8 of 49 39/07, 56/07, 438/07 and 634/07 Hospital. At 2.39 A.M. on 2.6.2006 Harish Sharma telephoned the accused no.1 mentioned at column no.2 directing Mrs. Raji Chandru, DGM, Apollo Hospital narrating the incident and asked for legal favour in respect of Bibek Moitra and Rahul Mahaja which fact is apparent from the statement of accused Raji Chandru. Thereafter the accused Harish Sharma telephoned Sidhanshu Mittal regarding the incident and asked him to reach Apollo Hospital as soon as possible and informed him that Mrs. Raji Chandru had been told to extend all help. It was thereafter that the accused had in turn spoke to accused no.2 Dr. Mukund Pandey, CMO on duty and gave details of Rahul Mahajan and Bibek Moitra and asked him to take extra care. According to the statement of the drivers and the servants as recorded by the Investigating Officer the accused no.3 and 4 were waiting at the out gate to receive the patients being asked to do so by the accused no.1. The accused no.2 had attended Rahul Mahajan in the casualty cabin where he was brought by Ganesh and Anil with alleged history of poisoning with alcohol mixed with unknown substance in a conscious state and other complication and shifted him to ICU. Meanwhile the accused no.2 asked the servant to bring the substance which they had consumed and the servant Ganesh Sinha brought two polythene pouches containing white powder and handed over to Dr. Mukund Pandey, accused no.3 through accused no.13 Sidhanshu Mittal which sample had been sealed and in turn handed over to the police on their arrival. The accused no.3 had attended to Bibek Moitra in the casualty where he was brought by Ganesh and Anil with alleged history of alcohol ingestion and unknown poisoning. He was in a state of unconsciousness and after about half an hour of initial treatment for his survival, he was declared “brought dead” at about 3.15 A.M. During this period the accused no.1 had supervised the documentation of admission and treatment of the two patients and she telephoned and sent SMSs to many consultant doctors and official related to Apollo hospital. She herself filled up the admission forms for both the patients and got it signed by the accused no.13 at relatives column. As directed by the accused no.1 the MLC was not prepared by the casualty doctors i.e. accused no.2 and 3 at the first instance and the police was not informed. All the entries regarding admission of the patients were kept pending till such time when Bibek Moitra was declared dead and it became evident that the matter cannot be hushed up. The details of the mobile phone shows that the accused Harish Sharma and accused no.1 and 13 namely Raji Chandru and Sidhanshu Mittal had been talking with each other and both W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 9 of 49 39/07, 56/07, 438/07 and 634/07 of them failed to inform the police at the earliest opportunity despite the fact that there were under a legal obligation to do so. The accused no.6 had made the first entry in admission and discharge register in respect of Bibek Moitra and Rahul Mahajan at 3.55 A.M. and 3.57 A.M. respectively though Rahul Mahajan was brought into the casualty earlier that Bibek Moitra. Instead of informing the PCR at the earliest it was only at 4.20 A.M. that the Hassanain Raza was called out and accused no.3 was asked to prepare information sheet to be given to the police and he prepared the information sheet and handed over the same to the Security Office at 4.35 A.M. and instead of giving the information to the PCR at 100 number the telephone number of PS Tuglak Road was taken and it was only at 5.00 A.M. that the entire episode was informed to the police where it was recorded as DD No.34A dated 2.6.2006. Hence a considerable delay was caused deliberately in intimating the police. Further perusal of the record reveals that later on 9.15 A.M. Rahul Mahajan had been visited by the accused no.7 and accused no.8 and though they found him trying to open eyes and vitals for stable yet they advised for additional medicines and pathological test which did not include urine for toxicology screen. It was only at about 5.20 A.M. Dr. V. Suri visited Rahul Mahajan and advised for urine toxic screen for which sample was taken at 7.30 P.M. which fact is apparent from the statement of the various witnesses. On 3.6.2006 at 9.30 A.M. the ventilators were removed from Rahul Mahajan however he was kept on Bipap ventilation and at about 3.00 P.M. the accused no.12 alongwith accused no.7 gave a press briefing before the media stating therein that the toxic screen of Rahul Mahajan was negative meaning thereby that they had not found evidence of opiate or cocaine consumption by Rahul Mahajan. The various documents consisting of Rahul Mahajan's treatment file, bills, pathological reports, CFSL reports etc. revealed that the cloths of Bibek Moitra gave positive test for the presence of 6-manoacetylmorphine, acetylcodein, codeine, cocaine and caffine and the stomach wash of Bibek Moitra gave positive test for the presence of Ethyl Alcohol, 6-manoacetylmorphine, acetylcodeine, codeine and cocaine. Even the cloths of Rahul Mahajan gave positive test for the presence of Ethyl Alcohol, manoacetylmorphine, acetylcodeine and cocaine and the white powder substance handed over by accused no.13 to the casualty doctor tested and opined as heroine and cocaine. The various entries made in the registers are allegedly showing different time rather than the right time of admission and all the entries were reported to be stopped till such time Bibek Moitra was not declared dead which fact is evident W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 10 of 49 39/07, 56/07, 438/07 and 634/07 from the fact that in between another patient Rakesh Malhotra had also come to the hospital for casualty treatment and his entry time has been wrongly mentioned and later on cut and over written. The entries also do not match with the actual sequence of arrival of the patient. There are separate interpolation in the MLC. As per the MLC No.236/2006 the police had been informed at 4.00 A.M. which fact is incorrect since as per the record under version of Dr. Hussnain Raza the information to the police was prepared at 4.35 A.M. which was handed over to the Security Officer who had informed that PS Tuglak Road only at 5.00 A.M. which fact is apparent from the DD of PS Tuglak Road. It is also alleged that the treatment file has been manipulated. Under these circumstances it was necessary for the Investigating Officer to invoke the provisions of Section 177 and also Section 193 of IPC which has not been done. The Investigating Officer Sushil Chandra Sharma and the Supervisory Officer ACP Dr. B.B. Choudhary who are present in the Court have requested the Court to invoke the said provisions. Though in my considered opinion since the alleged violation i.e. fabricating the false evidence for the purpose of being used in any stage of judicial proceeding does not require sanction under Section 195 Cr.P.C. not being covered under Clause B of Section 195 IPC yet the Investigating Officer submits that in case if the same is required at any stage he would file the same after obtaining it from the competent authority. Hence in my view the aforesaid material on record, I Section take cognizance of the offence under 177/182/193/201/109/114/120-B IPC as against the accused persons including HarishSharma who has been wrongly kept in column no.2 since there is material on record to show a prior meeting of minds between Harish Sharma, Mrs. Raji Chandru and Sidhanshu Mittal. Issue summons against Harish Sharma, Mrs. Raji Chandru, Dr.Mukund Pandey, Dr. Ali Mohmd. Ganani, Mohmd. Akram, Ms. Nisha Anna Chacko, Ms. Shyni Verghese, Dr. Prasad Rao, Dr. Awdesh Bansal, Dr. Abha Gupta, Ms. Dilna John, Ms. Sheerin Sara Chacko, Dr. Anupam Sibal and Mr. Sidhanshu Mittal. Issue summons to all the accused persons through the Investigating Officer for 12.1.2007. Announced in the open Court. Dated 4.11.2006 sd/- (DR. KAMINI LAU) ACMM, NEW DELHI” W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 11 of 49 39/07, 56/07, 438/07 and 634/07

5. Mr.Harish Salve, the learned senior counsel for the petitioners in Writ Petition (Crl.) Nos.35/06, 37/06, 38/06 and 39/06 contended that the proceedings initiated against the petitioners are ex facie without jurisdiction since the said proceedings do not emanate from a complaint filed by the concerned police officer. Section 195 (1) (a) of the Code of Criminal Procedure mandates that cognizance of an offence under Section 177 to 188 IPC can only be taken upon filing a complaint by the concerned public servant, and expressly bars any Court from taking cognizance of an offence under Sections 177 to 188 of the Penal Code except on a complaint in writing made by a public servant. In the present case, he contended that, though it is submitted by the prosecution that the complaint dated 30th October, 2006 was filed by the concerned public servant along with the charge-sheet, the proceedings have not emanated from the purported complaint filed, but have emanated out of a Report filed under Section 173 Cr.P.C, made in an investigation pursuant to the order under Section 156(3) Cr.P.C.

6. In the above context, Mr.Salve submitted that the admitted facts amply demonstrate that the entire procedure from root to fruit, i.e., from filing of the application under Section 155 to the taking of cognizance of the “charge- sheet”, is patently illegal and vitiates the proceedings. According to him, the allegations of falsification of the records relate to investigation into the offences under the NDPS Act by Rahul Mahajan and others (accused in FIR No.104/2006), which case was investigated by the S.H.O., Police Station Tughlak Road, New Delhi. Thus, Section 195 would bar cognizance being taken except upon a complaint filed by the SHO, Tughlak Road, who is the W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 12 of 49 39/07, 56/07, 438/07 and 634/07 concerned public servant in the present case. Instead of filing a complaint, the SHO, Tughlak Road, Inspector Madanjit Singh (the concerned public servant) filed an application before the Additional Chief Metropolitan Magistrate for permission to investigate a non-cognizable offence under Section 155 (2) of the Cr.P.C. This clearly shows that the public servant had no knowledge of the commission of an offence on which the complaint could have been filed by him – he was seeking orders from the Court for the investigation of a non- cognizable offence. The Addl. Chief Metropolitan Magistrate, treating the application as being under Section 155(2) Cr.P.C., directed another Officer, i.e., the S.H.O., Police Station Sarita Vihar to conduct the investigation. The SHO, Sarita Vihar registered the present FIR (FIR No.305/06) and after investigating the matter filed a “charge-sheet”. This shows that the impugned order of the learned ACMM purports to take cognizance not on the basis of any complaint, but on the basis of this “charge-sheet”. The said “charge-sheet” filed by the SHO, Sarita Vihar cannot be treated as a complaint within the meaning of Section 195 (1) (a) of the Cr.P.C., it not being a complaint by the public servant concerned.

7. According to Mr. Salve, the matter does not end here. The complaint by the concerned public servant said to be attached with the “charge-sheet” has not even been referred to by the ACMM, leave alone taken cognizance of by the ACMM. The ACMM has referred to the “charge-sheet” filed by the SHO, Police Station Sarita Vihar only and thereafter has taken cognizance of the same. In other words, proceedings have not been initiated on the complaint of a public servant, but on the charge-sheet filed by the second Investigating W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 13 of 49 39/07, 56/07, 438/07 and 634/07 Officer. This runs counter to the scheme of Section 195 (1) (a) of the Cr.P.C. The subsequent formality of filing a complaint as an annexure to the charge- sheet, Mr. Salve contended, cannot result in the curing of this defect. This view was taken by the Hon' ble Supreme Court in the case of Daulat Ram Vs. State of Punjab 1962 (Supp.) (2) SCR 812.

8. In the above context, reference was made by the learned senior counsel for the petitioners to the distinction laid down in the Code of Criminal Procedure between a “complaint” [defined in Section 2(d)] and “police report” [defined in Section 2(r)]. It is urged by him that a perusal of the said definitions would reveal that the term “complaint” as defined under Section 2(d) excludes the term “police report”. Section 2(d) and 2(r) read as follows: “2(d). “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, ha committed an offence, but does not include a police report. 2(r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173.”

9. The first limb of Mr.Salve's contention with regard to the absence of a complaint thus hinges on the provisions of Section 195 (1) (a) which read as under: “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) offence, of any criminal conspiracy to commit, such offence, (iii) except on the complaint in writing of the public servant of any abetment of, attempt to commit, such W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 14 of 49 39/07, 56/07, 438/07 and 634/07 concerned or of some other public servant to whom he is administratively subordinate;” (emphasis supplied)

10. The second limb of Mr.Salve's argument is that the proceedings are also contrary to the provisions of Section 195 (1) (b), inter alia, for the reason that the complaint is not only in relation to Section 182 of the IPC, but also in relation to Section 193 of the IPC, in which case the complaint should have been filed by the learned ACMM trying the Rahul Mahajan case (FIR No.104/2006). The provisions of Section 195 (1) (b) Cr.P.C. which are apposite are as under: “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).............................................................................................. (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 of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), (iii) (ii) except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.” (emphasis supplied) Section 193 of the Indian Penal Code reads as follows: “193. Punishment for a 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 W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 15 of 49 39/07, 56/07, 438/07 and 634/07 which may extend 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 extend 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.” (emphasis supplied)

11. It is submitted by Mr. Salve that Explanation (2) to Section 193 IPC is couched in wide language to provide that “an investigation directed by law preliminary to a proceedings before a Court of Justice, is a stage of judicial proceeding, though that investigation may not take place before a Court of Justice”. Mr.Salve contends that the language of Explanation (2) does not limit the coverage provided by the said Explanation to offences in Chapter XI of the Penal Code, but is couched in general language, and in the absence of words of limitation in the said Explanation, its language must be given full effect. Elaborating upon this contention, Mr.Salve urges that the scheme of the Code of Criminal Procedure is that all investigations into offences – whether cognizable or non-cognizable - are under the control of the Court, and once an investigation is commenced, it must necessarily result in a report being filed under Section 173 Cr.P.C. Thus, all investigations under Section 173 Cr.P.C. are ex-hypotheses “preliminary to a proceeding before a Court of Justice....”. It must then follow that for the purpose of offences (whether under Chapter X or under Chapter XI) committed in the course of criminal investigation under the Cr.P.C., the offences would be deemed to be committed in the course of a W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 16 of 49 39/07, 56/07, 438/07 and 634/07 judicial proceeding, and consequently a complaint would only be competent by the concerned Magistrate (or Court of Justice) before whom the criminal proceedings are finally taken up as judicial proceedings.

12. In the alternative, Mr.Salve submits that in any event Section 195 (1) (b) bars cognizance of an offence under Section 193 when such offence is alleged to have been committed in or in relation to any proceeding in any court except on the complaint in writing of that Court. In the present case, at the time of cognizance of the offence under Section 193 IPC, the charge-sheet had already been filed and cognizance taken by the Court in FIR No.104/2006 (the Rahul Mahajan case). The allegations in the “charge-sheet” filed in case FIR No.305/2006 are of offences allegedly committed in the course of investigation of offences under trial in that case, i.e., in case FIR No.104 of 2006. Therefore, cognizance could have been taken by the Court only if the complaint was filed by the concerned Judicial Officer and not by the Police Officer. It is also submitted that the learned Magistrate proceeded on the assumption that the absence of sanction is a procedural defect, which can be cured at a later stage. This assumption, it is submitted, is completely erroneous as the non- compliance of the mandatory provisions of Section 195 (1) (b) strikes at the root of the jurisdiction of the Court [M.L.Sethi Vs. R.P.Kapoor (1967) 1 SCR 520].

13. The third limb of Mr.Salve's submission is that mis-carriage of justice has resulted from breach of the provisions of Section 340 Cr.P.C., which lays down the procedure for proceeding in a case affecting the administration of justice and prescribes that where the court making the complaint is of the W.P.(Crl.) Nos.35/07, 36/07, 37/07, 38/07, Page 17 of 49 39/07, 56/07, 438/07 and 634/07 opinion that it is expedient in the interest of justice that an inquiry should be made into my offence referred to in clause (b) of Sub-Section (1) of Section 195, such Court shall record a finding to that effect [Section 340 (1) (a)]. This is, it is submitted, a vital safeguard in favour of all those who are witnesses in a criminal investigation and insulates them from any pressure that may be brought to bear upon them by the officers investigating the offences. Thus, it is only when the Court before whom a judicial proceeding is pending is satisfied that the facts on record show that an offence has been committed by some persons under Chapter X or Chapter XI of the Code, that the Court would record a prima facie finding to that effect and then make a complaint thereof in writing. No such exercise having been undertaken in the present case and the provisions of Section 340 Cr.P.C. having been given a complete go-by, the necessary safeguards provided by the Court to the witnesses of the offence have been removed and this has resulted in the witnesses, who are in the instant case doctors and nurses, being placed in the dock.

14. Relying upon the decision of the Hon'ble Supreme Court in T.T. Antony