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Ram Pal Singh Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1982CriLJ424
AppellantRam Pal Singh
RespondentState of U.P. and ors.
Cases ReferredSmt. Dano v. Shankar Lai
Excerpt:
.....in any court, which till then was confined only to complaints directed against parties to the proceeding (offence having been committed in capacity of such party) now became applicable in respect of complaints directed against so i do not think that it takes away the right of a party to file a complaint in respect of a document which came into existence long before the proceedings were initiated the intention of the legislature clearly appears to be to restrict the bar of section 195 to those cases which came into existence in the course of the proceedings or were used in those proceedings. c, the intention of the legislature clearly was to restrict the bar of section 195 only to such cases which came into existence in the course of the proceedings. state of gujarat 1971crilj1437..........its dignity and prestige. on principle, there is no reason why such safeguard should not apply to offence committed by witnesses also. witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. if, therefore, the provisions of clause (c) are extended to witnesses, the extension would be in conformity with the broa;l principle which forms the basis of section 195. the legislature took notice of the views of the law commission and it. while drafting the new cr. p. c, made following provision in s, 195 thereof:-195 (1) no court shall take cognizance :-(a) (i)-(iii)....(b) (i)....(ii) of any offence described in section 463 or.....
Judgment:

H.N. Seth, J.

1. On 2-1-1978 applicant Ram Pal filed a complaint before the Judicial Magistrate, Saidpur, against Hira Lai Ram Surat Chameli and Mita alleging that in a mutation case initiated by his wife Smt. Fadhika Devi, in the Court of Tahsildar, Saidpur, Hira Lai filed a forged document purporting to be deed of .agreement dated 18-12-1973 executed by one Smt, Purnamasi Devi, and prayed that Hira Lai who had filed the document as well as Ram Surat the scribe thereof and Chameli and Mita who had set themselves up as 'attesting witnesses be prosecuted for committing offences Under Sections 465, 467, 468, 419 and 420 I.P.C. The Judicial Magistrate after recording the statements of the complainant and his witnesses, took cognizence of an offence Under Section 468 IPC and summoned the accused named in the complaint.

2. The accused appeared before the Court and raised a preliminary objection to the effect that cognizance of the offence, on the basis of the complaint filed by Ram Pal Singh, was barred under the provisions of Section 195 Criminal P. C. Learned Magistrate while overruling the objection observed that in the first place the provisions of Section 195 of the Criminal P. C. were not attracted in the instant case inasmuch as that section specifies various offences in relation to which the bar created by it applies but then an offence punishable Under Section 468 is not one of the offences contemplated by that section. Further as the possibility that the document, which is said to have been forged by the accused persons, might have been forged prior to the institution of the mutation proceedings in the Court of Tahsildar, cannot be ruled out, the bar created by Section 195 of the Cr. P. C. will not be attracted.

3. Being aggrieved, the accused went up in revision before the Sessions Judge, Ghazipur, Learned II Addl. Sessions Judge, Ghazipur, vide his order dated 19th July, 1980 allowed the revision and held that in the instant case cognizance taken by the Magistrate of the offence under S, 468 IPC was barred by the provisions contained in Section 195 of the new Cr. P. C. Before the Addl. Sessions Judge, learned Counsel for the complainant placed reliance on the decision of the Supreme Court in the case of Legal Remembrancer of Govt of West Bengal v. Haridas Mundra : 1976CriLJ1732 wherein while considering the corresponding provision contained in the Cr. P. C. 1898, the Supreme Court had ruled that the bar created by that section became applicable only when the offence of the nature specified therein was committed by the accused after he had become a party to the proceeding in which the document in relation to which the offence was committed, was filed. The learned Judge held that the aforementioned ruling of the Supreme Court was not relevant inasmuch as the legal position had undergone a change in the new Cr. P. C. with which he was concerned. After interpreting the provisions of the new Code learned Addl. Sessions Jud.ge held that the bar created by Section 195(1)(b)(ii) also applied to cases where offences of the nature specified therein were committed prior to the institution of the proceeding in which the document, relating to which the offence was said to have been committed, had been filed. The Addl. Sessions Judge further held that an offence under S- 468, Cr. P. C. was an offence of the nature described in Section 195(1)(b)(ii) i. e., one that was covered by the offence described by Section 463 I.P.C.

4. The complainant then came up in revision before this Court. Before the learned single Judge (Bakshi, J.) who heard the revision, he relied upon a decision by M. M. Gupta, J., in the case of Raj Narain Dubey v. State, Criminal Misc. Petition No. 1808 of 1980, decided on 23rd of Jan., 1981 and contended that the view taken by the Sessions Judge that cognizance of the offence Under Section 468 IPC stood barred by the provisions of Section 195(1)(b)(ii) even in cases where the offence had been committed in relation to a document brought into existence prior to the institution of the proceeding in which it was filed, is erroneous. learned Counsel for the accused, on the other hand, relied upon decisions of three other learned single Judges of this Court in the cases of S. C. Srivastava v. State, 1980 All Cri R 76 (V. N. Verma, J.), Idris Khan v. Asghar Ali Khan, 1978 All Cri R 16 (B. N. Katju, J.) and Raj Bahadur Singh v. Smt. Shiv Dulari, Criminal Misc. Case No. 648 of 1980. decided on 4th of Sept., 1980 (P. N. Bakshi, J.) and contended that in view of the law laid down in aforementioned three cases, the learned Sessions Judge was quite justified in holding that under the new Cr. P. C. the bar created by Section 195(1)(b)(ii) became applicable even in cases where an offence of the nature specified therein was committed prior to the institution of the proceedings in which the concerned document was filed. In view of the discordant note struck by M. M. Gupta, J., in this regard, in Raj Narain Dubey's case (supra), Bakshi, J., before whom this revision application came up for hearing, thought it proper to refer the case for decision by a larger Bench and this is how this revision application has come up for hearing before us.

5. Ordinarily it is open to anyone to prefer a complaint i.e., to inform a Magistrate that a person whether known or unknown has committed an offence and to request him to take action against such person. However, in larger public interest, the legislature, in its wisdom, thought that in certain cases where the offences committed were such that they resulted in contempt of lawful authority or affected public justice or they related to documents given or tendered before a Court, the right to prosecute should be restricted. It accordingly prohibited the Courts from taking cognizance of offences mentioned in S, 195 of the Code (old as well as new) unless and until the public servant or the concerned Court or their superior officers or Courts, themselves made a complaint.

6. The relevant portion of Section 195 (1) of the Cr. P. C. (old) ran thus':

No Court shall take cognizance-__

(a) & (b)....

(c) of any offence described in Section 463 or punishable Under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate:-

7. The bar created against taking cognizance of offences of the nature described in Section 463 or those punishable Under Sections 471, 475 and 476 IPC was made applicable only in such cases where such offences had been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding. The Supreme Court, in the case of Legal Remembrancer of Govt. of West Bengal v. Haridas Mundra : 1976CriLJ1732 while considering the scope of the provision contained in Section 195 (1) (c) of the old Code, observed that in order to attract the bar created by that section the offence of the nature, specified therein should have been committed by a party to that proceeding in his capacity as such party. The bar created by that section was thus not available in cases where the concerned offence had been committed by persons other than by a party to the proceedings in which the document was filed as also where it was committed by the party to the proceeding but before he became such a party, that is, before the proceeding, in which the concerned document was produced or given in evidence, was instituted.

8. It appears that the question whether the protection of the nature envisaged by Section 195 (1) (c) of the old Code should be limited only to parties to the proceedings or should be extended to other persons as well, was subsequently considered by the Law Commission which appeared to be of the view that the purpose of Section 195 is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the Court itself to uphold its dignity and prestige. On principle, there is no reason why such safeguard should not apply to offence committed by witnesses also. Witnesses need as much protection against vexatious prosecutions as parties and the Court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of Clause (c) are extended to witnesses, the extension would be in conformity with the broa;l principle which forms the basis of Section 195. The legislature took notice of the views of the Law Commission and it. while drafting the new Cr. P. C, made following provision in S, 195 thereof:-

195 (1) No Court shall take cognizance :-

(a) (i)-(iii)....

(b) (i)....

(ii) of any offence described in Section 463 or punishable Under Section 471, Section 495 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii)....

9. The effect of omission in the re-enacted provision of the words 'by a party to any proceeding in any Court'', occurring in Section 195 (1) (c) of the old Code, clearly is that the bar created by Section 195, against taking cognizance of an offence described in Section 463 or Under Sections 471, 475 or Section 476, IPC .committed in respect of a document produced or given in evidence in a proceeding in any Court, which till then was confined only to complaints directed against parties to the proceeding (offence having been committed in capacity of such party) now became applicable in respect of complaints directed against some other persons as well. Accordingly not only persons who are parties to the proceedings in which the objectionable document in respect of which offences of the nature mentioned in Section 195(1)(b)(ii) had been committed was filed or produced, but all other persons who are alleged to have committed such offence in relation to documents produced or given in evidence in any proceeding in a Court, also became, irrespective of the fact whether or not they were parties to the proceeding and whether or not they committed the offence in their capacity as such party immune from being prosecuted at the instance of a private complainant,

10. Next question that arises for consideration is as the whether the aforementioned immunity is to be limited only in respect of such offences committed after the concerned judicial proceedings had commenced or whether it also extends in relation to such offences as had been committed prior to initiation of such proceedings.

11. A plain reading of the section shows that what it actually bars is taking, at the instance of a private complainant, cognizance of an offence of the nature described in Section 463 I.P.C. or punishable Under Sections 471, 475 and 476 I.P.C. where such offence is said to have been committed in respect of a .document produced or given, in evidence in any proceeding in Court. The section nowhere provides that its provisions should be attracted only if such offence has been committed after initiation of the judicial proceedings in which the objectionable document had been produced or filed.

12. In the case of Patel Lalji Bhai Somabhai v. State of Gujarat : 1971CriLJ1437 the Supreme Court pointed out that in Section 195 (1) (c) of the old Code what was principally worth noticing was (i) the allegation of commission of an offence in respect of a document produced or given in evidence in a proceeding in a court and (ii) the commission of such offence by a party to such proceeding. It pointed out that undoubtedly use of the words 'in respect of' in the first ingredient did appear to enlarge the scope of the section but then after considering various provisions of the Code as also earlier decisions of various High Courts, it held that what the second essential of Section 195 (1) (c) of the old Code implied was that the offence in question should also have been committed by a party to the proceeding in which the document was produced or given in evidence in its capacity as such party. This eventually led to the proposition that the bar created by Section 195 (1) (c) of the old Code against taking cognizance of an offence at the instance of a private complainant became applicable only when such offence was committed after institution of the judicial proceedings in which the concerned document had either been produced or given in evidence.

13. Aforementioned decision of the Supreme Court was subsequently approved and followed in the cases of Raghunath v. State of U. P. : AIR1973SC1100 Mohan Lai v. State of Rajasthan : 1974CriLJ350 and Legal Remembrancer of Govt. of West Bengal v. Hari-das Mundra : 1976CriLJ1732 .

14. It thus appears that under the old Code the restriction contained against taking of cognizance of an offence of the nature described in Section 195(1)(c) of the Code, at the instance of a private complainant, was confined only to offence committed by a party to the proceeding in its capacity as such a party after institution of the concerned proceeding, because of use of the words 'by a party to any proceeding in any Court', which words are now conspicuous by their absence in the corresponding provision contained in Section 195(1)(b)(ii) of the new Cr.PC. In the circumstances, the reasoning given by the Supreme Court while interpreting the provisions contained in Section 195 (1) (c) of the old Cr.. P. C can now not be availed of in interpreting the scope and ambit of the bar against taking cognizance of an offence at the instance of a private complainant, created by Section 195(1)(b)(ii) of the new Cr. P. C.

15. learned Counsel for the applicant also invited our attention to the case of State of Maharashtra v. S. K. Bannu : 1980CriLJ1280 . In that case the question regarding the import of the words 'in or in relation to a proceeding in that Court occurring in Section 195 (1) (b) of the old Cr. P. C. had come up for consideration before the Supreme Court. While considering the question the Supreme Court observed that the section did not apply to a case where there were no proceedings in any court when the offence mentioned in the aforesaid clause was committed . This decision in our opinion, is of no help in interpreting the scope and ambit of the bar created against taking of cognizance of an offence at the instance of the private complainant, by Section 195(1)(b)(ii) of the new Cr. P. C. Likewise the decision of the Supreme Court in the case of State of Karnataka v. Hemareddy : 1981CriLJ1019 cited by the learned Counsel for the applicant does not touch the controversy before us and is not relevant for our purposes,

16. We find that in Criminal Misc. Case No. 1808 of 1980, Raj Narain Dubey v. State, decided by M. M. Gupta, J., on 23rd of January, 1981 the learned Judge while considering the question as to whether the bar against taking cognizance of an offence at the instance of private complainant, created by Section 195(1)(b)(ii) of the new Code, applied also to cases where the offence had been committed prior to the institution of the proceedings in which the concerned omission of the words 'by a party to any proceeding' in Section 195(1)(b)(ii) of the new Code, (which words found place in the corresponding provision contained in Sec- tion 195 (1) (c) of the old Cr. P. C.) various decisions of Supreme Court bearing on Section 195 (1) (c) of the old Code, continued to be relevant for purposes of interpreting the provisions contained in Section 195(1)(b)(ii) of the new Cr. P. C. In this connection the learned Judge observed thus ;

After going through the sections and the Supreme Court cases referred to above, I am of the view that the Supreme Court cases are not at all distinguishable and apply with full force to the present Section 195(1)(b)(ii) Cr. P. C. 1973 as they applied to old Section 195(1)(c) Cr. P. C.' The only change that has been brought about is that words 'by a party to any proceeding' have been deleted. Excepting for this change there is no other change in the section. Section 195 restricts the right of a party to file a complaint. It has, therefore; to be interpreted strictly. With great respect to the view of Brother Verma, J. I do not think that it takes away the right of a party to file a complaint in respect of a document which came into existence long before the proceedings were initiated The intention of the Legislature clearly appears to be to restrict the bar of Section 195 to those cases which came into existence in the course of the proceedings or were used in those proceedings. The interpretation of the Supreme Court in the aforementioned cases of Section 195, Cr. P. C. 1898 appears to be equally valid in respect of Section 195 as it stands in the new Code. It has been prayed that since I have disagreed with the view of Verma, J., the case should be referred to a larger Bench. However, since my view is in consonance with the view of the Supreme Court I do not think that the reference to a larger Bench is called for.

17. We find ourselves unable to agree with M. M, Gupta, J., when he observes that omission of the words 'by a party to any proceeding' in Section 195(1)(b)(ii) of the CrIPC of the year. 1973 does not effect any change in the law as had been laid down in Section 195 (1) (c) of the old Cr. P. C. and that the Supreme Court decision tendered while interpreting the provisions of Section 195 (1) (c) of the old Code continues to be relevant for interpreting the provisions of Section 195(1)(b)(ii) of the new Cr. P. C. We also find ourselves unable to agree with Gupta, J. when he states that while enacting Section 195(1)(b)(ii) in the new Cr. P. C, the intention of the legislature clearly was to restrict the bar of Section 195 only to such cases which came into existence in the course of the proceedings. As already discussed, the Supreme Court while interpreting the provisions of Section 195 (1) (c) of the old Cr. P. C. held that the bar created by that Section applied only to such cases where offence had been comitted by a party to the proceeding in its capacity as such party, leading to the further conclusion that it applied only to cases where the offence had been committed during the pendency of the particular judicial proceeding in which the concerned document was filed, because of specific words, by a party to the proceeding, used in that Section and not for any other reason. The Supreme Court in the case of Patel Lalji Bhai Somabhai v. State of Gujarat : 1971CriLJ1437 clearly pointed out that under Clause (c) of Section 195(1) of the old Code what was principally worth noticing was that it had two ingredients : (i) the allegation of commission of an offence in respect of a document produced or given in evidence in a proceeding in a court and, (ii) the commission of such offence by a party to such proceeding. It clearly indicated that the use of the words 'in respect of in the first ingredient, would seem to enlarge the scope of this clause but then it held that the applicability of the section was restricted by the second ingredient, namely, by use of the words 'by a party to such proceeding' in Section 195(1)(c) of the Code, which it interpreted as meaning that the offence should have been committed not only by a party to the proceeding but also in Us capacity as such party. The indication in the judgment seems to be clear that in case such words had not been used, the bar contained in Section 195(1)(c) of the Code against taking of cognizance of offence of the nature specified therein, in relation to document produced or filed in any court, would have been available in a number of other cases as well. We are accordingly of opinion that the view that omission of the words 'by a party to any proceeding' which find place in S.. 195(1)(c), in corresponding Section 195(1)(b)(ii) of the new Code does not effect any change in law, cannot be accepted as correct.

18. A question somewhat similar to the one before us came up for consideration before one of us in the case of Jawahar Lai Gupta v. Surya Narain Upadhyaya (Criminal. Revision No. 2167 of 1980 decided on' 8-9-1981). In that case it was alleged that one 'J' had filed a copy of a forged notice in a suit pending in the court of Munsif (West), Ballia. Subsequently at the instance of a private complainant proceedings were initiated for trying 'J' for committing offences Under Sections 465 and 471, IPC 'J' took a preliminary objection that cognizance of the complaint, at the instance of a private complainant, stood barred by the provisions contained in Section 195 of the Cr. P. C. this Court rejected the aforementioned objection primarily on the ground that as the forged document itself had not been filed in the court the provisions of Section 195, Cr. P. C. did not get attracted. To further support its conclusion the Court also made the following observations which, in the context of the case, were not absolutely necessary for its decision :-

It is also noteworthy that as per allegations in the complaint the alleged forgery was also committed before the civil proceedings started in 1975 and in the case of Legal Remembrancer v. Hari-das Mundra : 1976CriLJ1732 will be a direct authority, that so far as the alleged forgery is concerned, it will not be covered Under Section 195, Cr. P. C. alleged to have been committed before the proceedings concerned started.

So far on the main and real reason stated by the Court for repelling, in that case, the objection raised by 'J', is concerned, it is fully in consonance with the view which we are taking in this case. We, however, find that the second ground for overruling 'J's objection, based on the case of Legal Remembrancer v. Haridas Mundra : 1976CriLJ1732 assumes that law enacted Under Section 195 of the new Cr. P. C. continues to be the same as that created Under Section 195 of the old Cr. P. C. The question whether there has been any such change as a result of enactement of S, 195 in the new Cr.PC. was neither raised nor was it being con- sidered by the Court, We, therefore, feel that any observation made in that case, relying upon the case of Legal Remembrancer v. Haridas Mundra : 1976CriLJ1732 , cannot be called in aid by the applicants before us.

19. In the result we hold that so long as an offence of the nature specified in Section 195(1)(b)(ii) of the new Code has been committed in respect of a document produced or given in evidence in any court, the provision of the section gets attracted irrespective of whether or not such offence was committed prior to or after initiation of concerned proceedings.

20. learned Counsel for the applicant also argued that in the instant case the learned Magistrate has taken cognizance of an offence Under Section 468, IPC against the opposite parties. All that Section 195(1)(b)(ii) lays down is that no court shall take cognizance of any offence described in Section 463 or punishable Under Section 471, S, 475 or S, 476 of the IPC when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court. This section, according to the learned Counsel, has no application to an offence punishable under S, 468, I. P. C, the offence of which the Magistrate has in the instant case, taken cognizance.

21. We are unable to find any merit in this submission, Section 195(1)(b)(ii) applies to offences described in Section 463 or punishable Under Sections 471, 475 or Section 476. Section 463 of the IPC merely defines what forgery is, but the punishment for persons committing forgery in various circumstances and conditions has been provided in Sections 465 to 469 of the IPC In the context an offence punishable Under Section 468, IPC would certainly be an offence described in Section 463, IPC and would be covered by the provisions of Section 195(1)(b)(ii) of the new Cr. P. C. Similar view was taken by this Court in the case of Smt. Dano v. Shankar Lai 1973 All WR (HO 532 : 1974 All LJ 46 where it observed that it may be taken that an offence Under Section 465 is an offence of the nature described in Section 463, IPC M. M. Gupta, J. in the case of Raj Narain Dubey (supra), observed thus :

There is little doubt that an offence committed Under Section 465, IPC is an offence described in Section 463, IPC within the meaning of Section 195(1)(b)(ii).

22. We are, therefore, of opinion that the provisions of Section 195(1)(b)(ii) of the new Cr. P. C. apply also to cases where an offence of the nature specified in Section 195(1)(b)(ii) of the Criminal P. C. is committed prior to institution of the proceeding in which the concerned document is eventually produced or filed and that cognizance of such offences1 at the instance of a private complainant would be barred. As in the instant case the allegations on which the cognizance has been taken by the Magistrate amount to commission of an offence, described in Section 463 I. P. C, in respect of a document which was filed before the Court of Tahsildar Magistrate in certain mutation proceedings, the magistrate was not competent to take cognizance of such an offence at the instance of a private party.

23. In the result, the present revision application fails and is dismissed.


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