Source: Supreme Court 

Why in News? 

Recently, the Supreme Court in the matter of Mr. Ajayan v. The State of Kerala and Ors has held that  

• Section 195 (1) of the Code of Criminal Procedure, 1973 (CrPC) does not bar the investigation when directed by the High Court. 
• The Supreme Court emphasized that Section 195 of CrPC should not be a technical barrier preventing the investigation of serious allegations of judicial process interference.  
• The provision's primary purpose is to maintain the integrity of judicial proceedings while protecting individuals from frivolous complaints. 

What was the Background of Mr. Ajayan v. The State of Kerala and  Ors. Case?  

• In April 1990, an Australian named Andrew Salvatore was traveling from Thiruvananthapuram to Mumbai when he was caught at the airport with two packets of charas (hashish) hidden in his underwear, totaling about 61.6 grams. 
• After his arrest, the seized items, including his personal belongings and the underwear, were kept in police custody at the Valiyathura Police Station. 
• When the items were produced before a Judicial First Class Magistrate, a court clerk (Accused No. 1) was entrusted with custody of these items. 
•  In July 1990, an application was filed on behalf of Andrew Salvatore seeking release of his personal belongings, which was permitted by the court. 
• The items were released to a junior lawyer (Accused No. 2/Kerala MLA Antony Raju) who was representing Salvatore. Notably, Salvatore's underwear was also released along with his other personal items. 
• Later, Accused No. 2 returned the underwear to Accused No. 1, who then forwarded it to the Sessions Court, in the drug case. 
• The Sessions Court initially convicted Andrew Salvatore, sentencing him to 10 years' imprisonment and a fine of Rs. 1 lakh under the Narcotics Drugs and Psychotropic Substances Act, 1985(NDPS). 
• However, when Salvatore appealed, the Kerala High Court acquitted him after conducting a practical test, which revealed that the underwear did not match Salvatore's size. 
• The High Court strongly suggested that the underwear might have been planted to help Salvatore and recommended a proper investigation. 
• Following this, a Vigilance Officer of the High Court investigated and submitted a report recommending a detailed investigation. 
• In October 1994, based on the High Court's recommendation, a First Information Report (FIR) was registered alleging that the underwear was replaced by an unknown person. 
• In 2006, a charge sheet was filed against the court clerk and the lawyer, alleging they conspired to alter and replace the evidence to help Salvatore escape conviction. 
• In 2022, the clerk and the Kerela MLA (Antony Raju) filed a separate petition before the High Court for quashing of the criminal proceedings. 
• They claimed that cognizance could not have been taken by the Judicial Magistrate 1st Class as there was a bar under Section 195(1)(b) CrPC. 
• The High Court allowed the petition and quashed the criminal proceedings against them. 
• The High Court also issued directions to be taken for taking de novo steps against the allegations raised. 
• Based on the High Court’s order Raju and MR Ajayan (Editor, Green Kerala News) approached the Supreme Court raising the issue that: 
  • Whether Section 195(1)(b) CrPC, which puts embargo on taking of cognizance in certain situations (except upon complaint by a Court), was attracted to the present case?  

What were the Court’s Observations? 

• The Supreme Court observed that:  
  • Locus Standi of M.R. Ajayan: 
    • The Court held that M.R. Ajayan, as a socially spirited person and editor of "Green Kerala News", has locus standi to file the Special Leave Petition.  
    • The Court emphasized that in cases involving serious allegations of interference with judicial processes, third-party interventions can be allowed
    • The Court noted that the locus standi should not prevent examining the correctness of the High Court's approach.
  • Section 195(1)(b) of CrPC:
    • The bar under Section 195 is mandatory but should not be interpreted to prevent legitimate investigations.  
    • The proceedings originated from a judicial order (the High Court's 1991 judgment) and not a private complaint. 
    • The alleged act of tampering with evidence strikes at the foundation of judicial integrity.
  • Public Interest:  
    • The Court strongly emphasized that the case involves a significant public interest.  
    • The alleged interference with judicial proceedings erodes public trust in the judicial system.  
    • Such actions compromise the principles of rule of law and fairness.
  • Nature of the Proceedings:  
    • The Court rejected the High Court's distinction between judicial and administrative orders.  
    • It noted that the initiation of proceedings was directly linked to the High Court's 1991 judgment acquitting Salvatore.
  • Retrial and Exceptional Circumstances:  
    • The Court affirmed that retrials can be ordered in exceptional circumstances 
    • The principles of fair trial and search for truth are paramount. 
    • Procedural violations that seriously prejudice the trial can justify a retrial. 
  • The Supreme Court set aside the High Court's order quashing the criminal proceedings:  
    • Restored the order taking cognizance in the criminal proceedings. 
    • Directed the Trial Court to conclude the trial within one year. 
    • Ordered the accused to appear before the Trial Court on 20th December 2024.
• The Supreme Court highlighted the following principles based on precedents for section 195 CrPC as: 
  • Mandatory Procedural Requirement: 
    • Section 195 of CrPC is a mandatory procedural provision. 
    • It restricts the general right of individuals and magistrates to register complaints for specific types of offenses.
  • The section deals with three distinct categories of offenses: 
    • Contempt of lawful authority of public servants. 
    • Offenses against public justice. 
    • Offenses relating to documents given in evidence.
  • Scope and Purpose: 
    • The section applies to offenses that: 
      • Directly impact the discharge of public servants' duties. 
      • Directly correlate with court proceedings. 
      • Affect the administration of justice.
    • Cognizance Restriction: 
      • The provision creates a bar against taking cognizance of certain specified offenses. 
      • Cognizance can only be taken upon a complaint by: 
        • The court concerned 
        • An authorized officer of the court 
        • A subordinate court
  • Document-Related Offenses: 
    • The bar applies specifically when an offense involves a document in "custodia legis" (court's custody). 
    • Forgery of a document before its court production is not covered by this bar. 
    • The bar only applies to offenses occurring after a document's production in court.
  • High Courts can exercise jurisdiction under Section 195: 
    • On an application 
    • Suo-motu (on its own) 
    • When the interests of justice demand
  • The section aims to protect innocent persons from: 
    • False complaints 
    • Frivolous legal proceedings by private individuals. 
  • The term "Court" is interpreted broadly includes civil, revenue, and criminal courts and can include tribunals established by central or state acts.
  • Hierarchical Considerations: 
    •  Courts to which appeals ordinarily lie. 
    •  Principal courts with original civil jurisdiction. 
    •  Specific provisions for multiple appellate courts.
  • Exceptional Circumstances:
    • While the bar is mandatory, it should not: 
      • Prevent legitimate investigations. 
      • Obstruct the pursuit of justice. 
      • Shield genuine instances of judicial misconduct.
  • Key Principle Underlying the Interpretation: 
    • The Supreme Court emphasized that Section 195 of CrPC should not be a technical barrier preventing the investigation of serious allegations of judicial process interference.  
    • The provision's primary purpose is to maintain the integrity of judicial proceedings while protecting individuals from frivolous complaints. 

What is Section 215 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)? 

• This section was earlier covered under Section 195 of CrPC. 
• This section states the provision related to Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. 
• It states as follows: 
  • Two primary categories of offenses are covered: 
    • As per subsection 1(a), No court shall take the cognizance of: 
      • Offenses under sections 206-223 of BNS (excluding section 209  
      • Including direct offenses, abetment of such offenses and criminal conspiracy to commit such offenses. 
      •  Cognizance can only be taken on written complaint by: 
      • Concerned public servant. 
      • Administratively subordinate public servant. 
      • Public servant authorized by the concerned public servant. 
  • As per Subsection 1(b): 
    • Offenses under sections 229-233, 236, 237, 242-248, and 267. 
    • Offenses related to court proceedings or documents. 
    • Including offenses committed during court proceedings, offenses involving documents produced as evidence and criminal conspiracy, attempt, or abetment of such offenses. 
    • Cognizance can only be taken on written complaint by: 
      • The concerned court 
      • An officer authorized by the court 
      • A subordinate court
  • Subsection 2 of this section states the provisions related to withdrawal of complaints as: 
    • Authorized administrative authorities can order withdrawal of complaint. 
    • No withdrawal allowed if the trial has concluded.
  • Subsection 3 defines the “Court “as:
    • Civil Courts 
    • Revenue Courts 
    • Criminal Courts 
    • Tribunals constituted under Central/State Acts
  • Subsection 4 states subordination of court as: 
    • Courts receiving appeals 
    • Principal Courts with original civil jurisdiction.
  • It is further provided that: 
    • where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate. 
    • where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.