An appellant charged with using a forged diploma as genuine argued the facts disclosed offences under ss. 193 and 196 IPC requiring court sanction under s. 195 CrPC. The Supreme Court held his conduct was corrupt use of false evidence under s. 196, not dishonest or fraudulent use under s. 471, and stopped the prosecution.
Prosecution under ss. 465/471 IPC quashed; appeal allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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DR. S. DUTI
v.
STATE OF UTIAR PRADESH
•
August 18, 1965
B
(K. N. WANCHOO, M. HIDAYATULL'i\H AND J.C. SHAH, JJ.]
c
Code of Criminal Procedure (Act 5 of 1898), s. 195-Sanctlon oj Court for prosecution for offences committed during judicial proceedingsCourt refusing sanction in respect of alleged offence under s. 193 l.P.C.Prosecution on same facts for offences under s. 465 ands. 471 I.P.C. where no sanction required-Whether proper.
Indian Penal Code (Act 45 of 1860). ss. 193, 196 and 471-lngredlentJ of-Meaning of 'dishonestly', 'fraudulently' and 'corrupt'.
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The appellant was examined as a forensic expert in a sessions trial. He claimed to hold a diploma in criminology which he produced before the Sessions Judge on being asked to do so. On the basis of the appellant'• D testimony the accused were acquitted. On the allegation that the diploma produced by the appellant was a forged one the prosecution applied to the Sessions Judge under s. 195 of the Code of Criminal Procedure for prosecution of the appellant under s. 193 of the Indian Penal Code. The application was rejected by the Sessions Judge. Subsequently on a report being lodged wih the police the appellant was charge-sheeted for offence~ under ss. 465 and 4 71 of the Penal Code. The appellant objected at his trial for these offences that he could not be legally prosecuted as the E facts disclosed offences under ss. 193 and 196 of the Indian Penal Code and not under ss. 465 and 471 with which he was charged. He alleged that the prosecution was attemp~ing to evade the provisions of s. 195 of the Code of Criminal Procedure. The trial court having overruled the appeJlant's objections, he went in revision to the High Court and having failed there as well, he appealed to this Court by &pecial leave.
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HELD : ( i) The evidence did not disclose any offences under ss. 465 and 471, but rather offences under s. 193 and 196 l.P.C. The distinction between sections 465 and 471 on the one hand and 193 and 196 on the other is that 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 fa1&e 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 s. 471 requires a user to be either fraudulent, G dishonest or both, s. 196 is satisfied if the user is corrupt. it was not alleged that the appellant himself forged the diploma and therefore s. 465 was not attracted. For s. 471 it is necessary that the forged document is 'used' by the accused 'dishone•tly' and 'fraudulently'. Even if production of the document at the behest of the court can amount to 'using' the document, it could not be said to have been used 'dishonestlv' as the appellant did not intend to cause wrongful gain to himself or· wrongful H loss to another. Nor could he he said to have used it 'fraudulently' within the meaning of s. 25 of the Penal Code, that is to say, with "intent to defraud", inasmuch as his intention in producing the certificate was not to cau&e any one to act to his disadvantage. since he only complied with the order of the Court. [499 H-500 B; ·503 B-E]
SUPREME COURT REPORTS [1966] 1 S.C.L
494
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The prosecution of the appellant for offences under ss. 465/471 I.P.C. A could not therefore be allowed to continue. [504 A-Bl Assistant Sessions Judge North Arcot v. Ramammal, I.L.R. 36 Mad. 387, Ma Ain Lon v. Ma On Nu, A.l.R. [1925] Rangoon 191 and Walham '. Director of Public Prosecutions, [1961] A.C. 103 and In re London and Globe Finance Corpn.. Ltd., [1903] 1 Ch. 728, referred to. (ii) If the appellant gave false evidence in court or if he fabricated false evidence the offence under s. 193 was clearly committed. Again when B he used his diploma as genuine his conduct was 'corrupt' within the mean- ing of that word as used in s. 196. That section includes conduct which though neither fraudulent nor dishonest is otherwise blame-worthy or improper. [501 A-B; 500 H] Emperor v. Rana Nana, 1.L.R. 46 Born. 317 and Bobkhranjan Gupta v. The King, I.L.R. [1949] 2 Cal. 440, referred to. The evidence thus disclosed that the appellant committed offences under C ss. 193 and 196 of the Penal Code. For prosecution under these sections, the sanction of the Court in writing was necessary. In the lessor offences under ss. 465 and 471 no such sanction was necessary. It is obvions that the lesser offences were chosen to bypass the Sessions Judge who had earlier decided that the appellant should not be prosecuted for perjury. Such a device is not to be commended. [503 HJ
Nur-ul-Huda v. State of West Bengal, [1963] S.C.R. 836, re-affirmed. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 90 of 1965.
Appeal by special leave from the judgment and order dated February 12, 1965 of the Allahabad High Court in Criminal Revision No. 260 of 1963. A. S. R. Chari, A. N. Sinha and A. K. Nag, for the appellant K. K. Jain and 0. P. Rana, for the respondent.
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The Judgment of the Court was delivered by
Hidayatullah, J. Dr. S. Dutt who appeals to this Court by special leave against the judgment and order of Mr. Justice Misra JI 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 and Ors.-S.T. 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 speciaG lised 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 (C.I.D.) 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 H and the credentials of Dr. Dutt were challenged. The Judge asked Dr. Dutt to produce all his academic diplomas and certifi-
s. DUTT v. STATE (Hidayatullah, J.)
495
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A cates for his .inspection. Dr. Dutt produced the aforesaid dip- loma 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 B did not appeal against the acquittal and that matter ended there.
On November 12, 1957 prosecution applied to the Session Judge under s. 195 of the Code of Criminal Procedure for the prosecution of Dr. Dutt under s. 193 of the Indian Penal Code. It was stated in the application that "the defence witness No. 3 C Dr. S. Dutt has committed forgery of certain diploma produced .in this Hon'ble Court dming 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 s. 466/ 477 (subse- D quently changed to s. 465 / 4 71) of the Indian Penal Code in the Court of the Additional Sessions Judge, Hardoi while giving evidence in Sessions trial State v. Matadin and others. 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 E that Dr. Dutt had "used them in the court with a bad motive, passing them as genuine". On October 26, 1958 a charg.~-sheet under s. 465 / 4 71, Indian Penal Code was filed against Dr. Dutt in the Court of the Judicial Officer III, Hardoi by the C.I.D. Police, Lucknow.
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F 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 an offence under s. 193, Indian Penal Code and a complaint in writing of the court was required under s. 195 of the Code of Criminal Procedure before cognizance G could be taken. Dr. Dutt also contended that ss. 465/471 did not apply to the alleged facts and that the prosecution wa• attempting to evade the provhions of s. 195 of the Code of Criminal Procedure. During arguments on his petition Dr. Dutt also claim.~d that s. 196 and not s. 4 71 of the Indian Penal Code applied to the facts of the case and that even that offence required H that the procedure of s. 195 should have been gone through. The prosecution, on the other hand, contended that Dr. Dutt wa• being prosecuted for forgery of the diploma and for using the said
(1966] I S.C.R.
SUPRl!MI! COURT REPORTS
4116 •
forged document and, therefore, the offence fell within ss. 465/ 4 71 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 s. 465 / 4 71, 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.
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 imer a/ia 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 o!Ienccs arc enumerated in the section and among them are ss. 193 to 196. 199 and 200 of the Indian Penal Code. Section 195 further provides that prosecution for any offence of forgery described in s. 463 or of u'ing a forged document as genuine punishable under s. 471, s. 475 ors. 476 of the Indian Pen::! Code in respect of a document produced or given in e'idcnce 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 s. 4(i3 J.P.C. and of using such forged documents, if produced or given in c\·idcnce 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 s.~. 193 to 196. 199 and 200 (among others) committed in a judicial procceJing by a per·:on ('· hethcr a party or not) requires a complaint in writing of the court before "hich the offence is committed or of some oth~~ court to which such court is subordinate. It is this difference which has apparently induced the selection of s<. 465./ 4 71 rather than ss. 193/ I 96 of the Indian Penal Code. The former do not require the complaint by the court but the latter do, and this is the main point of controversy before us also.
Mr. Chari for Dr. Dutt first draws attention to certain observations of thi> Court in Bnsir-11l-H11q and Others v. The State of West Bengal and .'ar-11!-lluda v. The State of West Bengal('), where it is obsen·cd that s. 195 of the Code of Criminal Procedure mml not be evaded if the bar created by it stands in the way (t) (1963) S.C.R. 836 at R42.
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s. DUTT v. STATE (Hidayatul/ah, J.)
497
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Mr. Chari concedes that s. 195 ( 1) ( c) of the Code of Criminal Procedure would not bar the present prosecution of Dr. Dutt if F the offence fell within s. 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, i~ that the offence, if any, was not under s. 465 nor under s. 471, but one under s. 193 or 196, Indian Penal Code for which the procedure of s. 195 of the Code of Criminal Procedure was imG perative. It is, therefore, necessarv to examine the ambit of the provisions which are set in opposition by the parties.
G
Sections 465 and 4 71 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 • ii parts which deal with counterfeiting of Property and other Marks and currency-notes and Bank-note~. The first part deals inter alia with forgery, making of false documents and their use.
498 SUPREME -- COURT REPORTS
[1966] 1 S.C.Q.
Sections 193 and 196 occur in Chapter XI which deals with false A 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 B the case.
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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 s.econd clause deals with cases of dishonest or jraud•lent 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.
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 med 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 :
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"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 ss. 465/471, Indian Penal Code.
Tl
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499
s. DUTT v. STATE (Hidayatullah, J.)
A 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 n making, while on oath, of a statement which is known to be false or believed to be faLoe 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 appli.es here may be set out :
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"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 .~vidence, 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."
D
The offence of intentionally giving false e,vidence described in E s. 191 or of fabricating false evidence described in s. 192 is punishable under s. 193 with imprisomnent which may extend to :ieven years and fine, if the evidence is given or fabricated to be used in any stage of judicial proceeding. Section 196 next provides:
IY
"196. Whoever corruptly uses or attempts to use a~ true or genuine evidence any evidence which he knows to be false or fabricated shall be punished in the same manner as if be gave or fabricated false evid.ece."
It is, of course, not necessary to mention again that for the offences under ss. 193 and 196, Indian Penal Code tbel"e could G be no prosecution without a complaint in writing of the court concerned. An attempt was, in fact, made to have Dr. Dutt prosecuted under s. 193 but the court declined to file a complaint.
The broad distinction between offences under the two groups is this. Section 465 deals with the offence of forgery by the H making of a false document and s. 4 71 with the offence of using forged document dishonestly or fraudulently. Section 193 deals with the giving or fabricating of false evidence and sectioa 196 with corruptly using evldence known to be false. The gist of the
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[1966] l S.C.R.
500
SUPREME COURT REPORTS
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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 s. 471 requires a user to be .either fraudulent, dishonest or both, s. 196 is satisfied if the user is corrup1. The Penal Code defines the expressions fraudulently and dishonestly but not the expression corrupt.
B
We shall now attempt to apply the two groups of offences contained in Chapter XI and Chapter XVIII, to the proved acli of Dr. Dutt. We shall begin with Chapter XI. The definition of c the expression "fabricating false evidence" in s. 192 already quoted, quite clearly covers this case. If Dr Dutt fabricated the fals~ 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 D the result of a judicial proceeding. Dr. Dutt, as alleged, was falsely posing as an expert and was deposing about matters which were material to the r.~sult 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 fom1 an erroneous oplnion about Dr. Dutt and the relevancy of his evidence. The case was thus covered by s. 192. When Dr. Dutt deposed. Jet us assume falsely about his training, he committed an offence under s. 193. Again, when Dr. Dutt used the diploma as genuine his conduct was corrupl, whether or not it was dishonest or fraudulent. Th.= word "corrupt" does not necessarily include an element of bribe taking. It is used in a F much larg.~r 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 case' only. In Emperor v. Rnna 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 Bibkhranian Gupla v. The Kinf!,(') Mr. Justice Sen dealt at Ien!!th with this word. He was contrasting s. 196 with s. 471 and observed that tho word corruptly was not synonymous with dishon.?stly or fraudulently but was much wider. According to him it even included conduct which was neither fraudulent H nor dishonest if it was otherwise blameworthy or improper.
H
(ll I.LR. 46 Bom. 3t7.
(2) I.LR. (194912 Cal. 440.
s. DUTT v. STATE (Hidayatullah, l.)
501
A It would thus be seen that the action of Dr. Dutt was covered by ss. 192 and 196 of the Penal Code. If Dr. Dutt gave false evidence in court or if he fabricated false evidence the offence under s. 193 was clearly committed. If he used fabricated evidence an offence under s. 196 was committed by him. These offences would have required a complaint in writing of the SesB sions Judge before cognizance could be taken.
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 c 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 s. 464 of the Indian Penal Code. In fact, th.~re 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 D defined by s. 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 E 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 s. 4 71 of the Indian Penal Code [See Assistant Sessions Judge North Arcot_ v. Ramammal(') and Ma Ain Lon v. Ma On Nu](2 _). Even if one were to hold that ~ did use the document as genuine his intention in producing it F 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 s. 25 of the Penal Code. A person is said to do a thing G fraudulently if he does that thing with intent to defrau·d 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 8 intent to deceive or defraud". while in the Forgery Acts the words "with intent to defraud" alone were used. The reason was
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(I) LL.R. 36 Mad. 387.
(2) A.l.R.[1925] Rangoon 191.
[1966] I S.C.R.
502
SUPREME COURT REPORTS
that documents were divided into two : public documents and private documents. In the case of publ'c documents it was enough if the intention was n:crely to deceive but in the case of private documents such an intention was not cons;dered Si!fficient but "an intent to defraud" was rcqutred. The distinction between the two expressions \as made by Lord Buckley (then Huckley 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 dece't 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).
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There has been much dispute in recent years as to what Lord Buckley meant by the words "deprived by deceit... The<c arc apparently the key words. The rest is mere paraphrasing. Whether these words meant the causing "f 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 W elham v. Director of Public Prosecutions(') 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 been criticized by the editors 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 Modem Law Revie". May 1960 and the Cambridge Law Journal 1960. We need not go i;,1,. that question here, but it may be said that a mere actin~ to one\ discomfort or discomfiture would not suffice. For the prcsent it is sufficient to say that the words '"with intent to defraud" in the section indicate not a bare intent to dccive but an intent to cause a person to ~ct or omit to act, ,,, ;i result of deception played upon him. to his disadvantage. This is the most extensive meaning. that may be iven to the cxpr(!i;sion "\ith intent to defraud'' in our Penal Code and the word:; "but not otherwi," clearly show that the words 'intent
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(I) )196t) A.C. t03.
s. DUTT v. STATE (Hidayatullah, J.)
503
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W c are, therefore, satisfied that Dr. Dutt's conduct does not come within s. 471. On the other hand, it falls within s. 196 which casts its net wider in the interest of the purity of adminisF tration of justice. It may be noted that an offence under s. 196 of the Penal Code is a far more serious offence t11an the offence under ss. 465/471. The former is punishable with in1prisonment up to seven years and fine while the latter is punishable with imprisonment up to two years or with fine.
504 SUPREME COURT REPORTS [1966] l S.C.R.
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chosen to bypass the Sessions Judge who had earlier decided that A 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 ss. 465/471, I.P.C. and the prosecution launched against Dr. Dutt cannot be allowed to go on. In the result the appeal succeeds and is allowed. B Appeal allowed.
•
1 issue framed by the court
Whether an expert witness producing a possibly forged diploma during a judicial proceeding could be prosecuted under ss. 465/471 IPC without the sanction required by s. 195 CrPC for offences under ss.
Colour shows how this judgement treated each authority
Nur-ul-Huda v. State of West BengalRelied on
[1963] S.C.R. 836 · Who else cites this
Assistant Sessions Judge North Arcot v. RamammalReferred
I.L.R. 36 Mad. 387
Ma Ain Lon v. Ma On NuReferred
A.I.R. [1925] Rangoon 191 · Who else cites this
Welham v. Director of Public ProsecutionsReferred
[1961] A.C. 103
In re London and Globe Finance Corpn. Ltd.Referred
[1903] 1 Ch. 728
Emperor v. Rana NanaReferred
I.L.R. 46 Bom. 317
Bibkhranjan Gupta v. The KingReferred
I.L.R. [1949] 2 Cal. 440 · Who else cites this
5 provisions across 2 enactments
Dr. S. Dutt
State of Uttar Pradesh
K. N. Wanchoo
M. Hidayatullah
J. C. Shah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
