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In Re: Mohaniraj Krishna Korhalkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 413 of 1929
Judge
Reported inAIR1930Bom337; (1930)32BOMLR589; 129Ind.Cas.581
AppellantIn Re: Mohaniraj Krishna Korhalkar
Excerpt:
.....were incorrect. the plaintiff next presented a complaint against the applicant for fabrication of false evidence and false document (ss. 193 and 465 of the indian penal code) without a complaint of the court under section 195 (1) (6) of the criminal procedure code :--;that the plaintiff was entitled to complain, and that no complaint by the court was necessary as the offence could not be alleged to have been committed ' in relation to ' the civil suit within the meaning of section 195(1)(6) of the criminal procedure code.;in re vasudeo ramcliandra (1922) 24 bom. l.r. 1153 and re parameswaran nambudri (1915) i.l.r. 39 mad. 677, distinguished. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward..........then moved the subordinate judge to take proceedings against mohaniraj for forgery, fabricating false evidence and perjury, under section 476 of the criminal procedure code. the subordinate judge rejected the application on april 5, 1927, holding that sections 476 and 195 (1) (b) of the code did not apply and that damodar could prosecute mohaniraj without the intervention of the civil court. on appeal the district judge confirmed the order, but left it open to damodar to apply again to the subordinate judge in respect of the allegation of perjury. a revision application made by damodar to this court was summarily rejected on january 11, 1928. damodar then moved the subordinate judge again to take action under section 476 in respect of the perjury allegation, but the subordinate judge.....
Judgment:

Broomfield, J.

1. The facts leading to bins application for revision are as follows. On July 24, ] 924, the present applicant Mohaniraj Krishna purchased a house at Kopargapa from Baghu-nath Balvant Thombare. The sale-deed contained certain recitals which are alleged to be untrue and prejudicial to the rights of Damodar Shivram Thoinbare, the present opponent, who is the owner of a neighbouring house. On October 23, 1924, Damodar filed a civil suit against Mohaniraj for a declaration that the said recitals were false and fraudulent and for certain injunctions. On April 19,1926, the Subordinate Judge made a decree declaring plaintiff' Damodar's exclusive right to a plot of land between the houses of the parties and negativing defendant Mohaniraj's right to do any act interfering with Damodar's enjoyment of the same. This decree involved a finding that the recitals in the sale-deed were incorrect. Damodar then moved the Subordinate Judge to take proceedings against Mohaniraj for forgery, fabricating false evidence and perjury, under Section 476 of the Criminal Procedure Code. The Subordinate Judge rejected the application on April 5, 1927, holding that Sections 476 and 195 (1) (b) of the Code did not apply and that Damodar could prosecute Mohaniraj without the intervention of the civil Court. On appeal the District Judge confirmed the order, but left it open to Damodar to apply again to the Subordinate Judge in respect of the allegation of perjury. A revision application made by Damodar to this Court was summarily rejected on January 11, 1928. Damodar then moved the Subordinate Judge again to take action under Section 476 in respect of the perjury allegation, but the Subordinate Judge rejected this application on April 9,1929, and the District Judge in appeal confirmed that order on August 1, 1929.

2. In the meantime, on June 10,1929, Damodar himself presented a criminal complaint against Mohaniraj and others, in the Court of the Sub-divisional Magistrate, N. D., Nagar, for offences under Sections 193 and 465, Indian Penal Code. The offence under Section 193 is alleged to be, not perjury, but fabrication of false evidence, the details given in the complaint being that the accused got false recitals in the aforesaid sale-deed made 'with the object of securing benefit to themselves and with the object of causing wrongful loss to the complainant and with a view that this fabricated evidence might be of use to them in future.' The accused made an application to the Magistrate objecting that the trial could not proceed on the private complaint of Damodar by reason of Section 195 (1) (b) of the Criminal Procedure Code, which provides that no Court shall take cognizance of an offence under Section 193, Indian Penal Code, when the offence is alleged to have been committed ' in or in relation to any proceeding in any Court', except on the complaint of that Court or of a Court superior thereto. The Magistrate, on October 2, 1929, overruled this objection and rejected the application. It appears from his order that he considered that he was bound by the High Court's order of January 11, 1928, and also that he held on the merits that Section 195 (1) (b) of the Criminal Procedure Code does not apply. It is this order of the Magistrate which Mohaniraj now asks us to revise.

3. It is sufficiently obvious, but should nevertheless be stated, that we are not in any way concerned now with the motives of the complainant Damodar in launching this prosecution so long after the event, and that of course we cannot consider the merits of the case. Those are matters entirely outside the scope of this revision application. The only point we have to decide is whether the Magistrate is right in his view that Section 195 (1) (b) of the Criminal Procedure Code does not apply in the circumstances of this case; in other words, was the offence alleged to have been committed by the accused, viz., the fabrication of false recitals in the sale deed of July 24, 1924, committed 'in relation to' the civil suit filed by Damodar in October 1924.

4. Counsel for the applicant Mohaniraj has relied on the following cases: In re Vasudeo Ramohandra : AIR1923Bom105 ; Emperor v. Bhawani Das ILR (1915) All. 160; Kanhaiya Lal v. Bhagwan Das ILR (1925) All. 60; and Be Parameswaran Namludri ILR (1915) Mad. 677. In In re Vasudeo Ramchandra it was held that the words ' in relation to ' in Section 195 (1) (b) are very general and are wide enough to cover a proceeding in contemplation before a Court, though it may not have begun at the date when the offence was committed. But it was there found that the offence in question, which was subornation of perjury, related to proceedings which were clearly in contemplation at the time the offence was committed; and the decision will not govern the present case unless it is clear that Damodar's suit, or at any rate some proceeding in Court, was contemplated by the accused at the time of the execution of the sale-deed, and the recitals were inserted in the sale-deed with reference thereto. In Emperor v. Bhawani Das it was held that when once a document has been produced or given in evidence before a Court the sanction of that Court is necessary, notwithstanding that the offence alleged was committed before the document came into Court. Both that case, and Kanhaiya Lal v. Bhagwan Das, which followed it, were cases under Section 195 (1) (c), in which the language to be construed is different. They are distinguishable on that ground, and also on the ground that in the present case the document was not in fact produced in the civil proceeding. Mohaniraj refused to produce the sale-deed in Damodar's suit, and it was the plaintiff, who put in a copy of it. That is a circumstance which seems to me to have an important bearing on the question whether the alleged offence can be said to have been committed in relation to any proceeding in Court.

5. In Re Parameswaran Nambudin the facts were these. A complaint of false endorsement on a promissory note to prove a payment of Rs. 1,500 was made to a Second Class Magistrate, who had no jurisdiction to try the case. It was transferred for trial to a First Class Magistrate, and before the date of transfer the complainant in the criminal case had filed a suit on the promissory note. The Court held that the sanction of the civil Court was necessary under Section 195 (1) (b). There are some passages in the judgment in this case which may perhaps be said to support the very wide construction which the applicant wishes us to put upon this provision of the law. Thus Ayling J. says in Re Pwrameswaran Nambudri (p. 678) :-

if it were shown that the accused could have had no other object than tin appearance of the endorsement in evidence in case a suit should be brought 01: the promissory note, then I do not think the uncertainty at the time of writing the (indorsement as to whether any suit would ever actually he brought affects the completeness of the offence.

6. Again, at p. 679 :-

The object of this clause of the section seems to be to save the time of Criminal Courts being wasted and accused persons being needlessly harassed by erecting a safe-guard against rash, baseless or vexatious prosecutions for the offences specified. It aims at doing so by providing that where, prior to the institution of the criminal prosecution, a properly constituted judicial tribunal has placed itself in a position to determine whether the facts constituting the offence really exist, the Criminal Court should decline cognizance unless that tribunal has, in effect, certified that in its opinion the complaint is one worthy of investigation, I see no reason why this safe-guard should be limited to cases where the offence is committed pendente lite and should not extend to cases of fabrication of false evidence in advance.

But it is important to note that the Court appears to have been satisfied in that case that the accused could have had no other object than the appearance of the fabricated document in evidence in Court, and that the evidence was fabricated in advance, that is to say, in contemplation of the suit which was filed on the promissory note. I am not at all sure, therefore, that this decision really carries us any further than the decision of our own High Court in In re Vasudeo Rainchandra.

7. In the Madras case it appears that the suit on the promissory note was practically inevitable and that being so there is no difficulty in holding that the fabrication of the endorsement on the note was made ' in relation to ' the suit. But the position is by no means the same in the case with which we have to deal. We do not know how Damodar came to know about this sale-deed, but there is no reason at all to suppose that Mohaniraj contemplated that a suit would be brought against him, except perhaps in the distant future, and as the learned Government Pleader on the opponent's behalf has pointed out, it would not be to his interest that there should be litigation about the matter until after the lapse of a considerable time. The suit being, as it appears, unexpectedly filed, Mohaniraj refrained from putting the document in evidence. It would, in my opinion, be a straining of the language of Section 195 (1) (b) to hold that in those circumstances the offence is alleged to have been committed ' in relation to ' the suit. As I have already mentioned the complaint does not allege an intention to use the evidence in a judicial proceeding.

8. For these reasons I am of opinion that the view taken by the Magistrate in this case is in accordance with law, and that the rule and interim stay should be discharged.

Mirza, J.

9. I agree.

10. The question we have to determine on this application is whether the offence of fabricating false evidence with which the applicant is charged in the complaint can be said to have been committed by the applicant in relation to a proceeding in Court, viz., Civil Suit No. 689 of 1924, brought by the opponent against the applicant in the Court of the Second Class Subordinate Judge of Kopergaon, so as to require a complaint in writing by that Court or a Court superior to it, under the provisions of Section 195 (1) (b) of the Criminal Procedure Code. Sir Chimanlal Setalvad has put the applicant's contention before us on the broad ground that the intention of the Legislature should be taken to be that no one is to be harassed with a criminal prosecution in respect of matters which have come before a civil Court except on a complaint in writing of the civil Court itself or a Court superior to it where those matters relate to offences which are set out in Section 195. No doubt the offence with which the applicant is charged in the complaint formed part of the subject-matter of the civil suit and the opinion of the civil Court whether the offence if committed is of sufficient gravity to call for a written complaint by it would be a proper safeguard against the time of the criminal Court being occupied in a futile, unnecessary or trivial prosecution. But can it be said that the alleged offence was committed in relation to this suit It would be straining the language of the section too far in my opinion to apply it to a case such as here where the party who has brought the civil suit has not himself fabricated the evidence in relation to that suit but is challenging certain evidence the opposite party might adduce against him to his prejudice as being false and fabricated. The authorities to which our attention has been called do not seem to have gone so far except perhaps in Re Parameswaran Nainbudri ILR (1915) Mad. 677 the facts of which case can be distinguished from the case before us. In that case a false endorsement had been fabricated on a promissory note with a view to resisting a claim which the holder of the note was expected to bring on the note. The maker of the false endorsement had made it with a view that it might be used on his behalf in resisting the suit that was to be brought against him on the note. In the case before us it cannot be reasonably urged that the applicant in fabricating the false evidence had in view that the fabricated evidence would be used by him in a proceeding that was in the contemplation of any party at the time. Lapse of considerable time would be necessary before the fabricated evidence could serve the purpose for which it was designed and it would not be unreasonable to suppose that if considerable delay did take place before the false and fabricated evidence was discovered there would be little likelihood of party who might be prejudiced proceeding to challenge that evidence. As a matter of fact the applicant probably realising the futility of the fabricated evidence which was so recent did not produce it in support of his defence. The opponent adduced a certified copy of the sale-deed in evidence in order to challenge some of its recitals as being false and fabricated. It does not appear how the opponent came to know of the sale-deed and the recitals it contained. It cannot be said in my opinion that when the false recitals were fabricated in the sale-deed a proceeding of the nature subsequently taken by the opponent or any proceeding was in the contemplation of the applicant so as to bring this case within the ruling of our Court in In re Vasudeo Ramchandra ILR (1926) All. 316 which gives a wide and very general interpretation to the words ' in relation to' appearing in Section 195 (1) (b) but which none the less requires that a proceeding should be in contemplation.

11. The view taken by the Sub-Divisional Magistrate appears to me to be correct. I agree that rule and interim stay should be discharged.


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