While reminding the police of the red lines which it should not cross, the Kerala High Court has in a most learned, laudable, landmark and latest judgment titled Suni @ Sunil v. State of Kerala in Bail Appl. No. 556 of 2023 and Crime No.1062/2022 of Koratty Police Station, Thrissur and cited in 2023 LiveLaw (Ker) 177 that was pronounced as recently as on April 4, 2023 minced just no words to hold that the police is not competent to register an offence under Section 195A (threatening any person to give false evidence) of the Indian Penal Code and that only a court is competent to consider an offence in relation to false evidence. The bail application was heard finally on March 31, 2023.

It must be mentioned that a Single Judge Bench of Hon’ble Mr Justice A Badharudeen clearly held that:
When the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed.

It deserves mentioning here that the Court was considering a bail application that was filed by a person accused of threatening an approver in a murder case. The Court held that the police cannot take cognizance of an offence under Section 195A and that matters pertaining to false evidence are to be decided by the Court. While holding that the cognizance taken of the offence under Section 195A of IPC to be bad in law, the Court granted bail to accused.

At the very outset, this cogent, composed, creditworthy and convincing judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen sets the ball in motion by first and foremost putting forth in para 1 that:
This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for short) by the sole accused in crime No.1062/2022 of Koratty police station.

To put things in perspective, the Bench envisages in para 4 that:
The prosecution allegation is that at about 15.10 hours on 05.12.2022, the defacto complainant, who is an approver in a murder case, vide crime No.1229/2017, where charge has been filed for offences punishable under Sections 302, 384, 364 and 120(B) r/w. Section 34 of IPC, was threatened by the accused herein, who is the accused in crime No.1229/2017, by calling the defacto complainant in his mobile No.7034632173 from the mobile No.8129417993 belonged to the wife of the accused.

The specific allegation is that the accused threatened the defacto complainant stating that the defacto complainant transposed to be a man of the police by styling himself as an approver and therefore, separate quotation would be given against him. Recording the First Information Statement given by the defacto complainant, the police registered the instant crime, alleging commission of offences punishable under Sections 195A of IPC and under Section 120(O) of the Kerala Police Act.

Most forthrightly, the Bench mandates in para 9 that:
In the decision in Radhakrishnan P’s case (Supra), this Court found that since offence under Section 167 and 195 A of IPC are undoubtedly interwoven with and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.PC., the bar under Section 195(1)(b) of Cr.P.C. would apply. In the unreported decision in Crl.M.C.No.7162/2015 in paragraph No.12, this Court held that no court shall take cognizance of any offence punishable under Section 195A IPC, 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 or by such Officer of the court as that court may authorise in writing in this behalf, or of some other court to which that court is subordinate.

It is also held that the court cannot take cognizance of the offences referred to therein on the basis of the report filed by the police under Section 173(2) Cr.P.C. In this case, it is argued by the learned counsel for the petitioner that the allegations in the FIS would suggest only a threat at the instance of the defacto complainant and therefore, the offence would fall under Section 506 of IPC and not under Section 195A of IPC. If at all, any offence under Section 195A IPC is made out, the same shall be one subject to the restrictions provided under Section 195(1)(b)(i) of Cr.P.C and therefore, registration of the instant crime by the police alleging commission of offence under Sections 195A of IPC is without authority and is bad in law.

Most significantly, the Bench minces absolutely no words to hold in para 27 what constitutes the cornerstone of this notable judgment that:
The conundrum as regards to the competence of the police to register a crime when offence under Section 195A of IPC is alleged sprang up for consideration only on the ground that the offence is classified as ‘cognizable’. It is relevant to note that, as I have already pointed out, Section 195A of IPC was introduced with effect from 16.04.2006 in between Section 195 and Section 196.

It is pertinent to note further that all other offences dealt under Section 195 of Cr.P.C. are ‘non-cognizable’. It is to be noted further that when the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed. Therefore, the cognizance of the offence under Section 195A of IPC by the police is held to be bad in law. However, the police registered crime under Section 120(O) of the Kerala Police Act also and therefore, investigation in this regard can go on.

Be it noted, the Bench then notes in para 28 that:
To be on the facts of this case, the petitioner herein was arrested on 11.12.2022. The allegation against him is that he had threatened the defacto complainant through telephone with dire consequence since the defacto complainant offered himself as an approver in crime No.1229/2017 involving offence under Section 302 of IPC. It is submitted by the learned Public Prosecutor that the trial in the said case not started so far and if so, the petitioner would be released on bail, he would repeat the same and he would threaten the witnesses in deposing truth before the trial court. Therefore, the bail application at the instance of the petitioner cannot be considered.

Finally and far most significantly, the Bench concludes by holding in para 29 that:
Although the allegations against the petitioner are very serious, since cognizance of the offence under Section 195A of IPC is found to be bad in law, the petitioner can be enlarged on bail, by imposing stringent conditions, taking note of the fact that he has been in custody from 11.12.2022. One among the conditions is that the petitioner shall not disturb the defacto complainant or the witnesses in crime No.1229/2017 in any manner so as to pressurize or threaten them from disclosing truth before the court. In the result, this petition stands allowed.

The petitioner is enlarged on bail on conditions:

1. The petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court concerned.
    
2. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial.
    
3. The petitioner shall appear before the Investigating Officer as and when directed, apart from appearing before the Investigating Officer on all Mondays between 9 am and 10 am, for a period of two months.
    
4. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer.
    
5. The petitioner shall not disturb the defacto complainant or the witnesses in crime No.1229/2017 in any manner so as to pressurize or threaten them from disclosing truth before the court. If any such event, either reported or came to the notice of this Court, or to the jurisdictional court, appropriate legal action will be taken without fail to arrest the said menace.

It is specifically ordered that the right of the approver to move before the jurisdictional court by filing petition under Section 195A of Cr.P.C. is left open. Similarly, it is specifically made clear that the right of the prosecution to seek cancellation of bail for violation of bail conditions in crime No.1229/2017 also left open.

In sum, we thus see that the Kerala High Court has held explicitly that cognizance taken by the police for offences under Section 195A IPC is bad in law. The Court also made it clear that only courts can consider matters relating to false evidence. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh