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Judgment
S.S. Mishra, J. Two appellants have jointly filed the present appeal under Section 341 Cr.P.C. challenging the very initiation of 2(c) CC Case No.51 of 1996 against them besides challenging the order of cognizance dated 05.08.1996 under section 193 of IPC being taken against them by the court of learned SDJM, Khurda in the complaint case.
Along with the appeal, the appellants have also filed CRLMC No. 2965 of 1996 seeking leave to appeal against the impugned order. This Court by granting leave to appeal has also stayed the operation of the impugned order. Therefore, the entire proceeding arising out of 2(c) CC Case No.51 of 1996 remained stayed during pendency of the present appeal.
To pre-face the actual background of this case, the following sequence of events is necessitated to be enumerated:-
On 02.07.1996, an FIR was registered for alleged commission of offence under Sections 341/342/506/ 376(2)(g)/34 of IPC in G.R. Case No. 477 of 1996.
The allegation in the FIR was of serious nature. On the very next day, i.e., 03.07.1996, the victim girl was referred to the Government Hospital at Khurda for medical examination. The appellants were posted there as the medical officers and attended the victim. After examination of the victim, they gave a report. They have also referred the victim to Department of Forensic Medicine and Toxicology, SCB Medical College for expert opinion.
The victim was produced before the Asst. Professor, FMT, SCB Medical College on 05.07.1996. In presence of the present appellants, the victim was again medically examined and the expert submitted a separate medical report.
The accused persons in the aforementioned FIR case having been denied bail by the court of learned SDJM, moved an application before the learned Addl. Sessions Judge, Khurdha. The learned Addl. Sessions Judge, Khurdha, vide order dated 20.07.1996, although rejected the bail of the accused persons, but while rejecting the bail application made certain observations. It is observed by the learned Addl. Sessions Judge, Khurdha that there are two medical reports, i.e., on 03.07.1996 and 05.07.1996 and both the reports are having variations. According to learned Addl. Sessions Judge, Khurdha, the first report given by the appellants have gone tangentially different from the subsequent report given by the expert. The learned Addl. Sessions Judge, Khurdha out of nowhere has made observation that the present appellants have tried to fabricate the evidence within the meaning of Section 192 of IPC. Hence, directed to file a complaint under Section 193 of IPC by invoking the process of Section 340 Cr.P.C. Relevant would be to reproduce the observations made by the learned Addl. Sessions Judge, Khurdha, which reads thus:-
“12.Before, I part with this order, I am totally against the way the two doctors, namely (Dr. P.C. Das, Specialist in Obstetrics and Gynecology) and Dr. Pravasini Bhahma, Asst. Surgeon) of the Sub-divisional, Hospital, Khurda have conducted themselves while examining the victim girl. With reference to the medical requisition from the Inspector-in-charge, Khurda Police Station dated 3.7.1996, the above named two doctors in their initial report submitted on the same day (3.7.96) indicated that there was a hyperemia on the posterior fourchette of the vagina. They further indicated that there was a bruise measuring 1 C.M. x 1 C.M. over the upper part of the right breast. They further specifically indicated that there was no other injury on any other parts of the body of the victim lady, there was no live or dead spermatozoa found on the vaginal fluid, no foreign materials like hair etc. was seen and more importantly there was no suggestive features as to the commission of rape.
12.1Having so opined, the above two doctors, of course, recommended for an expert opinion, obviously if the victim girl was sexually violated or not. This opinion sent down shock waves and made many to raise their eye brows, perhaps for the simple reason that it was not within the wave length of an acceptable finding in view of the tale tell evidence of the prosecutrix. Be that as it may, the police seems to have produced the victim girl before Dr. N.K. Mohanty, Asst. Professor, F.M.&T, SCB Medical College, Cuttack, Dr. Mohanty did not attend the examination of the victim girl himself. What he did is that he got the victim girl again examined through Dr. P.C. Das and Dr.(Mrs) Brahma of the Sub-Divisional Hospital, Khuda under his direct supervision and guidance. The second medico-legal report dated 5.7.96 furnished by Dr. Das and Dr.(Mrs) Brahma under the vigilant eyes of Dr. N.K. Mohanty, Asst. Professor F.m.&t, SCB, Medical College, Cuttack reveals as follows:-
Physical injuries:-
(i)Contusion mensuring 2 cm x 1.5 cm reddish bron in colour situated on the upper medial quadrent of right breast.
(ii)Abrasion 1 cm x 0.5 cm on the ulnar border of the left fore arm.
An area in between labia minora and majora on the left side towards posterior and looked hypemia and inflamed.
Past commissure and fourehettr- looked hyperemia and inflamed.
Hymen:-
Swollen, oedematous, inflamed where its posterior portion was found to be completely torn measuring 1 cm length. The opening was distorted and the torn part of the hymenal tissue was irregular, inflamed and oedematous.
14.The medico-legal opinion dated 3.7.96 and 5.7.96 by the same set of doctors, except of course, with the variation that the latter report was prepared under the supervision and guidance of the Asst. Professor of F.M.&T of the SCB Medical College, Cuttack will go to show that Dr. Das and Dr.(Mrs) Brahma went off tangentially in discharging their lawful duties and destroyed and shattered the public confidence reposed on them, when they submitted their initial report in a gay abudance style, although they were conscious that they were dealing with a medico-legal case triable by a court of sessions. They seem to have tossed their conscience when they described the contusion of 2cm x 1.5cm on the right breast of the victim girl as a bruise of 1cm x 1cm even though they had the benefit of examining her at least 48 hours earlier. Similarly, they could not notice in the first instance that there was an abrasion on the ulnar border of the left fore arm of the victim lady. That was not the everything that they omitted to perform in a manner which is not expected of a public servant working in a responsible position. They omitted to mention all the injuries found on the genitalia except one hyperemia on the posterior fourchette of the vagina. The swellings and inflamations and the hyperemia on the hymen, on the labia minora and the posterior fourchette of the vagina noticed on 5.7.96 must have been found by them in a prominent degree on 3.7.96 when they examined the victim girl.
14.1It will thus, appear that these two doctors have deliberately tried to suppress the material evidence, which were suggestive of sexual violation of the victim girl which they themselves have later opined, of course, under the watchful eyes of Dr. N.K. Mohanty, Asst. Professor, F.M. & T, SCB, Medical College, Cuttack. Though they were not successful yet they seem to have tried to decimate the prosecution case, so far it relates to medico-legal evidence. Their commendation for a second test and examination of the victim girl was just a „ploy‟ or „ruse‟ to buy time for total extinction or decimation of medico-legal evidence. If they considered themselves to be professionally not competent to deal with the case, they could have immediately recommended for an examination by a competent authority instead of fiddling or interfering with the victim girl at their level and rendering some tentative findings which they themselves later reversed and in the process allowing the defence to make a capital out of such irreconcilable findings rendered by them on 3.7.96 and 5.7.96.
15.This is called fabrication of evidence within the meaning of Section 192, IPC. With the sole object of up-holding the cause of justice and to undercore the majesty of law, it is hereby ordered that a complaint be filed under Section 193 of the Indian Penal Code before the SDJM, Khurda against those two doctors for fabricating evidence within the meaning of Sec.192 IPC so as to vindicate justice and fair play to all concerned.”
The learned Addl. Sessions Judge, Khurdha himself filed a complaint before the court of learned SDJM, Khurdha in the form of 2(c) CC Case No.51 of 1996 under Section 193 of IPC against the present appellants. In the complaint, it is alleged that the complainant while dealing with the bail application of the accused persons in a rape case came across two medical reports relating to the victim (prosecutrix). The first medical report was prepared on 03.07.1996 by the accused doctors (appellants) showing bruise over upper part of the right breast measuring 1cm x 1cm and a hyperemia of the posterior fourchatter of the vagina. However, in the second report by the expert dated 05.07.1996, it was found that the victim has sustained contusion measuring 2cm x 1.5cm on the upper medial guardant of right breast, an abrasion measuring 1cm x 0.5cm on the ulnar boarder of left fore arm and several other sings, symptoms and injuries in the genitalia of the victim. It is further alleged in the complaint petition that during the first medical examination, which was conducted 48 hours prior to the second examination, the accused doctors ought to have found injuries on the body of the victim and private part, which obviously must be prominent from that of the injury found in the second examination.
The learned SDJM, without embarking upon any enquiry and only on the basis of the complaint filed by the learned Addl. Sessions Judge, Khurdha, took cognizance of offence punishable under section 193 IPC and issued process against the appellants. The appellants are aggrieved by the same, hence they have filed the present appeal seeking quashment of the entire proceeding initiated against them, besides seeking setting aside of the order of cognizance dated 05.08.1996 passed by the learned SDJM, Khurda.
Heard Mr. H.K. Mund, learned counsel for the appellants and Mr. Jateswar Nayak, learned Addl. Government Advocate for the State-respondents.
Mr. Mund, by taking this Court to the provisions of law and relying upon various judgments submitted that invocation of the provisions under Section 340 Cr.P.C. by the learned Addl. Sessions Judge, Khurdha is misconceived. Therefore, the entire proceeding initiated against the appellants is devoid of merit on law as well as facts. He has relied upon the judgment of the Hon’ble Supreme Court in the matter of Sachida Nand Singh and another vrs. State of Bihar and another, reported in (1998) 2 SCC 493. In para-10, 11 and 12 of the judgment the scope of enquiry envisaged under section 340 Cr.P.C. has been elaborately discussed, which reads thus:-
“10.As Section 340(1) of the Code has an inter-link with Section 195(1)(b) it is necessary to refer to that sub- section in the present context. The said sub-section reads as follows:
"When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest 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 Magistrate of the first class having jurisdiction;
(d)take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e)bind over any person to appear and give evidence before such Magistrate."
11.The sub-section puts the condition that before the Court makes a complaint of "any offence referred to in clause (b) of Section 195(1)" the Court has to follow the procedure laid down in Section 340. In other words, no complaint can be made by a court regarding any offence falling within the ambit of Section 195(1)(b) of the Code without first adopting those procedural requirements. It has to be noted that Section 340 falls within Chapter XXVI of the Code which contains a fasciculus of "Provisions as to offences affecting the administration of justice" as the title of the Chapter appellates. So the offences envisaged in Section 195(1)(b) of the Code must involve acts which would have affected the administration of justice.
12.The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.”
Mr. Mund, learned counsel for the appellants further submitted that the appellants had given a report on the preliminary examination of the victim and referred the victim for further examination by an expert. There was no intention to create any document, which eventually was used by the accused in that FIR case to draw advantage. He further submitted that the appellants have not as such produced the document during hearing of the bail application. It was form part of the investigation process as case diary. The document was not produced by the appellants in the court, rather it was before the police which could have been eventually form part of the charge sheet. It is relevant to mention that charge sheet was also not filed then. Therefore, even if the accused has relied upon such document to derive advantage for the purpose of pressing his bail plea, the learned Addl. Sessions Judge, Khurdha ought not to have arrived at the conclusion that the document was used in the judicial proceeding. Therefore, the very ingredients required to satisfy for the purpose of kicking up the proceeding under Section 340 Cr.P.C. is missing in the present case.
Mr. Jateswar Nayak, learned Addl. Government Advocate appearing for the State has supported the impugned order and has submitted that it appears from record that the appellants have deliberately prepared the report only to give advantage to the accused and, therefore it is coming under the sweep of definition of fabrication of documents. Since the document was used in a judicial proceeding, the learned Addl. Sessions Judge, Khurdha has rightly taken cognizance of the offences on the same. The procedure adopted by under section 340 Cr.P.C. by the court of Addl. Sessions Judge, Khurda cannot be found fault with.
I have carefully gone through the document, provisions of law cited before me and the judgment relied upon by learned counsel for the appellants. The impugned order dated 05.08.1996 taking cognizance of the offence under Section 192 of IPC and the entire complaint case is liable to be set at naught being devoid of law as well as for non-satisfying the condition precedent to proceed against the appellants under section 340 Cr.P.C. for the following reasons:-
Section 193 of IPC prescribes punishment for furnishing false evidence. Fabricating false evidence has been defined under Section 192 of IPC, which requires to satisfy the following ingredients:-
Legal obligation to state the truth
Making of the false statement
Believe in its falsity
In order to bring the alleged offence committed by the appellants within the sweep of Section 192 IPC, all the ingredients are required to be satisfied. However, from the record it is emanating that while issuing the medical certificate the conduct of the appellants was not aimed or intended for violating any of the ingredients, as mentioned above.
(B). The further stringent condition to initiate a proceeding under Section 193 IPC is believed in its falsity while preparing evidence. The guilty intention and consciously preparing a document/evidence, knowing the falsity of the same is the paramount pre-consideration for prosecution for forgery. The falsity must be known to the maker at the time of making of the statement/evidence/document. From the record, there is no semblance of such allegation or material to show that the appellants had any intention to create any false evidence and that they were conscious that the report made by them was false and to be used by the accused for its advantage. The learned Addl. Sessions Judge, Khurdha completely misdirected himself to initiate a criminal prosecution against the appellants without even satisfying himself the fulfillment of the ingredients required to prosecute under Section 193 IPC.
The appellants while giving a report on 03.07.1996 have consciously referred the victim/prosecutrix to FMT Department of SCB Medical College for expert opinion and also they reserved their opinion awaiting the expert opinion. This sole circumstance itself negates the allegation of fabrication of false evidence or intention of creating a document favouring the accused. Had there been any intention on the part of the appellants to fabricate the document, they would not have referred the prosecutrix to be examined by an expert and they would not have reserved their opinion till the expert furnishes his opinion.
The learned Addl. Sessions Judge, Khurdha also failed to take into consideration the professional hazard despite best efforts made by the appellants. The appellants are not expert in their field. That precisely the reason they conducted a preliminary examination and referred the victim to an expert and reserved their opinion. This could at best be an error of judgment on the part of the appellants, but no mens rea could be read into it which warrants initiation of a criminal proceeding.
The initiation of the criminal proceeding against the appellants itself is against the established procedure defined under Section 340 Cr.P.C, which stipulates that when any offence referred to in clause-b of sub-clause (i) of Section 195 of the Cr.P.C. appears to have been committed in respect of a document produced or given in evidence in a proceeding in the Court and such court after such preliminary enquiry make a complaint. In the present case, the medical report is neither produced by the appellants nor was prepared to be produced in the judicial proceeding. It was in the process of investigation the document was collected. Therefore, the document was not rendered in evidence in the judicial proceeding. Hence, in a proceeding initiated against the appellants invoking Section 340 Cr.P.C. on the basis of record of investigating agency where even the charge sheet was not filed is absolutely contrary to law.
The proceeding initiated by the learned Addl. Sessions Judge, Khurdha against the appellants is premature because the document, namely, the medical report, given by the appellants was form part of the case diary of investigating agency, where no charge sheet was then filed. It was not even known to the learned Addl. Sessions Judge, Khurdha, as to whether the document would be form part of the charge sheet or not.
In view of the settled legal position governing the field, upon an examination of the factual matrix of the present case, this Court finds no reason to sustain the impugned action of the learned Addl. Sessions Judge, Khurdha, which culminated into the proceeding in 2(c) CC Case No. 51 of 1996. Therefore, this Court has no option rather to set aside the entire proceeding initiated against the appellants while setting aside the order of cognizance dated 05.08.1996 passed by learned SDJM, Khurda in 2(c) CC No. 51 of 1996.
Accordingly, the Criminal Appeal is allowed.