19 September 2024 - Legal Updates

1. Section 195 CrPC Bar Not Applicable When Forgery Was Committed On Document Before it was Given As Evidence in Court: Supreme Court

Dealing with a case involving allegations of forgery, the Supreme Court recently reiterated that there is no embargo under section 195 (1) (b) (ii) of CrPC to examine an allegation of forgery of documents filed in court, when such forgery is committed before its production.

As per section 195 (1) (b) (ii) of the Code of Civil Procedure, a court can take cognizance of an offence of forgery in relation to a document submitted in evidence in a court proceeding only on a written complaint of an officer authorized by that court (where the forged document was produced).

As per the allegations, the respondents had fraudulently obtained stamp paper and prepared an unregistered sale agreement. Thereafter, a suit was filed by them seeking certain reliefs and in the suit the forged document was filed.

The allegations however did not indicate whether the documents were forged when the matter was sub-judice before the Civil Court.

Criminal proceedings were initiated against the respondents alleging inter-alia forgery of documents filed in Court. The High Court quashed these proceedings, holding that there could be no FIR/private complaint for forgery of a document filed before Civil Court until the finality of the litigation.

When the appellant(s) assailed the same, the Supreme Court observed that the High Court ignored the ratio of the decision in Iqbal Singh Marwah & Another v. Meenakshi Marwah & Another. To quote this decision,

"Section 195 (1) (b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis".

In view of disposal of the civil suits in 2021, it was further opined that the High Court proceeded on a wrong assumption that the civil litigation between the parties had not attained finality.

Relying on Iqbal Singh, the bench of Justices Hrishikesh Roy and R Mahadevan concluded that the bar under Section 195 (1) (b) (ii) of CrPC was not attracted. Accordingly, the appeals were allowed and the order of the High Court set aside.

Case- Arockiasamy vs. State of Tamil Nadu & Anr.

2. PCPNDT Act | Search of Clinic Illegal If Not Authorized By All Three Members of District Authority: Supreme Court

The Supreme Court recently held that a search and seizure operation under section 30 of the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) must be authorised by all three members of the District Appropriate Authority under the Act collectively, and may decision by a single member is illegal.

A bench of Justice Abhay Oka and Justice Augustine George Masih quashed a complaint and FIR filed against a doctor accused of performing sex determination tests and participating in an illegal medical termination of pregnancy (MTP) racket.

Section 30(1) of the PCPNDT Act grants the Appropriate Authority constituted under Section 17 the power to search and seize records in a clinic if it has “reason to believe” that an offence under the Act is being committed. The phrase “reason to believe” in Section 30(1) is a safeguard to against arbitrary search and seizure, and the entire Authority must form that opinion, the Court observed.

“What is needed is that the complaint or other material received by the appropriate authority or its members should be immediately made available to all its members. After examining the same, the appropriate authority must expeditiously decide whether there is a reason to believe that an offence under the 1994 Act has been or is being committed. The Appropriate Authority is not required to record reasons for concluding that it has reason to believe that an offence under the 1994 Act has been or is being committed. But, there has to be a rational basis to form that belief. However, the decision to take action under sub-section (1) of Section 30 must be of the Appropriate Authority and not of its individual members”, the Court added.

The Court allowed the doctor's appeal challenging a judgment of the Punjab and Haryana High Court, which had refused to quash the FIR and complaint.

The appellant, a practicing physician and radiologist, was implicated in a sting operation conducted by the police and local authorities in Gurugram on April 27, 2017. The operation was triggered by allegations that the doctor's co-accused was involved in a racket related to sex determination and illegal abortions. A decoy patient and a shadow witness informed her that the sex of the fetus was known and sought confirmation through ultrasound as well as an MTP.

The co-accused allegedly arranged for the decoy patient to undergo sex determination through ultrasound at the appellant's clinic of the appellant for Rs.15,000. On the day of the sting operation, the decoy patient was taken to the appellant's clinic for the ultrasound. After the procedure, the police seized the money and a USG report signed by the appellant.

An FIR was for offence under Section 23 of the PCPNDT Act, 1994, which prohibits sex determination procedures. Subsequently, the District Appropriate Authority filed a complaint against the appellant and the other accused before the Chief Judicial Magistrate in Gurugram. The appellant sought to quash both the complaint and the FIR, but the HC declined to grant such relief, leading to the present appeal.

The appellant argued that the raid violated Section 30(1) of the PCPNDT Act, as the raid was authorized solely by the Civil Surgeon without the consent of the other two members of the District Appropriate Authority. The Civil Surgeon's affidavit confirmed this.

The State conceded that only the Civil Surgeon authorized the raid but argued that urgent circumstances justified the action. The State contended that this was a curable defect, rectified by subsequent actions, including the filing of the complaint by an authorized officer.

In the present case, the concerned Appropriate Authority constituted under section 17 of the Act consists of the Civil Surgeon, the District Program Manager of the Women and Child Development Department, and the District Attorney.

The Court found that the raid was authorized solely by the Civil Surgeon, without the involvement of the other two members of the District Appropriate Authority, which vitiated the search.

“Therefore, in the facts of the case, no legal decision was made by the Appropriate Authority in terms of sub-section (1) of Section 30 to search for the appellant's clinic. As stated earlier, sub-section (1) of Section 30 provides a safeguard by laying down that only if the Appropriate Authority has reason to believe that an offence under the 1994 Act has been committed or is being committed that a search can be authorized. In this case, there is no decision of the Appropriate Authority, and the decision to carry out the search is an individual decision of the Civil Surgeon, who was the Chairman of the concerned Appropriate Authority. Therefore, the action of search is itself vitiated”, the Court observed.

The Court further observed that the seizure memo from the raid indicated discrepancies in the composition of the search team. While one document mentioned that three officers conducted the raid, another mentioned four officers.

The Court rejected the Civil Surgeon's explanation regarding urgency. “The Appropriate authority doesn't need to have a physical meeting. The Civil Surgeon could have held a video meeting with the other two members. However, when a video meeting is held, every member must be made aware of the complaint or the material on which a decision will be made. It was a matter of a few minutes”, the Court observed.

The Supreme Court allowed the appeal holding that the FIR and the complaint were both solely based on an illegal search, and thus, continuing the prosecution would amount to an abuse of the legal process.

Case- Ravinder Kumar vs. State of Haryana

3. Proving Electronic Evidence With Certificate Not Required If Other Corroborating Evidence Is Sufficient To Prove Guilt: P & H High Court

The Punjab & Haryana High Court has upheld the conviction of the accused in a dacoity and murder case, observing that even if there is non-compliance with section 65-B of the Evidence Act in proving electronic evidence, the same will not be a ground to set aside the conviction.

The bench upheld the conviction awarded by the trial court which convicted thye accused persons on the basis of CCTV footage wherein they were clearly seen committing the crime. The High Court noted that since the footage was produced without a certificate it is not admissible evidence but the presence of other corroborative evidence is sufficient to prove guilt.

Justice Sudhir Singh and Justice Karamjit Singh said, "In terms of Section 27 of the Evidence Act, if any recovery is made pursuant to statement made by the accused in the police custody, the said part of the statement would be admissible in evidence, to connect the accused with the crime. In the instant case, on the basis of disclosure statements made by accused Shankar, Ajay, Rafiq and Lala Ram, recovery of looted articles (bundles of cloths) and sale proceeds thereof (amounting to Rs.1.80 lakh) was effected. Thus, even if there is non-compliance of Section 65-B of the Evidence Act, the same will not be a ground to set aside the findings of conviction recorded by the trial Court."

Background

The Court was hearing appeals of five convicted persons in a dacoity and murder case. According to the FIR, they murdered the guard of the company to commit dacoity.

CCTV footage showed that five to six persons had entered the company by scaling the wall and committed the murder of Laxman Singh, Guard.

The Trial Court convicted the accused under Sections 457, 396, 120-B and 412 of IPC and sentenced them to life, observing that "the CCTV footage had captured the entire occurrence, showing the manner in which, the deceased was being overpowered by the accused and he was ultimately murdered."

Counsel for the appellant argued that the findings of the trial Court are based on the CCTV footage, but while producing the said CCTV footage in evidence, the law laid down by the Supreme Court in Anvar P.V. Vs. P.K. Basheer and others, (2014), have not been followed and thus, the finding of guilt recorded by the trial Court, is liable to be set aside.

After examining the submissions, the Court noted that the CD of the CCTV footage is "secondary evidence, as the original server or the computer in which the CCTV footage was stored, was not produced."

As the evidence of CCTV footage was produced as secondary evidence, no details regarding the server, IP address and the computer from which it was prepared were brought on record or mentioned in the Certificate under Section 65-B of the Evidence Act, it noted further.

The bench observed that there is "no proper compliance of Section 65-B (2) and (4) of the Evidence Act" as per the Anvar PV case.

However, it noted that the DNA of the blood on the items of the robbery matched the accused person.

"The defence did not lead any evidence to controvert or disprove the said scientific piece of evidence. The factum of matching of DNA profile of blood stains on various items with that of accused Manoj clearly proves that the said accused had participated in the crime," the bench said.

"The offence under Section 396 IPC stipulates that if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Thus, if anyone of the accused or all of them while committing the dacoity committed murder, then all of them would be liable," it added further.

The Court also took note of other corroborative evidence like recovery of the looted articles from other accused persons involved in the crime.

It concluded that "From the evidence on record, it stands clearly proved that accused-appellant Ranjit, Shankar, Bablu and Gautam (along with co-accused Manoj, Ali Hassan and Stander – declared juvenile) had committed the murder of the deceased Laxman Singh, who was posted as a security guard on the day of occurrence in the Company."

The recovery of looted bundles of cloths and the vehicle TATA Ace used while committing the said crime coupled with the sale proceeds of the looted articles clearly connects the chain of evidence to hold that it was the accused, who had committed the crime in question, it added further.

In light of the above, the appeal was dismissed.

Case- Shankar vs. State of Haryana