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S. Amrik Singh Lyallpuri Vs. Ravi Dutt Sharma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 342 of 1973
Judge
Reported inILR1975Delhi685
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195; Indian Penal code, 1860 - Sections 468
AppellantS. Amrik Singh Lyallpuri
RespondentRavi Dutt Sharma
Advocates: B.I. Singh and; K.B. Rohtagi, Advs
Cases ReferredPatel Laljibhai Somahhai v. The State of Gujarat
Excerpt:
.....documents are alleged to have been filed--issue of summons against one who was not party to the suit--cognizance taken held to be without jurisdiction.; that when on a petition of complaint being filed before him a magistrate applies his mind for the purpose of proceeding under the various provisions of chapter xvi of the code of criminal procedure, he must be held to have taken cognizance of the offences mentioned in the complaint.; in the instant case, an offence under section 468/471, i.p.c., was alleged to have been committed by three persons, one of whom was the plaintiff in a suit in which the forged documents were alleged to have been filed. the magistrate, however, issued summons only against one accused, who was not a party to the said suit and dismissed the complaint against..........and 472 read with sections 34 and 107 ipc. it was stated in the complaint that niranjan das had filed a suit against ravi dutt sharma in the court of the subordinate judge, 1st class, delhi, claiming possession of the suit property under section 9 of the specific relief act and that although defendant ravi dutt sharma had not been served with the suit notice, sardar amrik singh lyallpuri had engaged an advocate, shri harbaksh snigh, representing to the said advocate that he was ravi dutt sharma, the defendant in the suit. a. vakalatnama purporting to have been signed by ravi dutt sharma was filed by shri harbaksh singh, advocate, and a written statement-also purporting to have been signed by ravi dutt sharma was also filed by the said advocate in the suit. the complainant ravi dutt.....
Judgment:

M.R.A. Ansari, J.

(1) Shri Ravi Dutt Sharma, the respondent herein, filed a complaint in the Court of the Judicial Magistrate 1st Class, Delhi, against the petitioner, Sardar Amrik Singh Lyallpuri, and two others, namely, Shri Ram Singh and Shri Niranjan Das, alleging that they had committed offences under sections 219, 416, 417, 467, 471 and 472 read with sections 34 and 107 IPC. It was stated in the complaint that Niranjan Das had filed a suit against Ravi Dutt Sharma in the Court of the Subordinate Judge, 1st Class, Delhi, claiming possession of the suit property under section 9 of the Specific Relief Act and that although defendant Ravi Dutt Sharma had not been served with the suit notice, Sardar Amrik Singh Lyallpuri had engaged an Advocate, Shri Harbaksh Snigh, representing to the said advocate that he was Ravi Dutt Sharma, the defendant in the suit. A. Vakalatnama purporting to have been signed by Ravi Dutt Sharma was filed by Shri Harbaksh Singh, Advocate, and a written statement-also purporting to have been signed by Ravi Dutt Sharma was also filed by the said advocate in the suit. The complainant Ravi Dutt Sharma, on coming to know of the above faces, inspected the suit records and discovered that a false endorsement had been made by the Process Server Rain Singh on the summons issued to the defendant to the effect that the defendant had refused to accept the summons. The learned Magistrate took the complaint on his file and proceeded to examine the complainant Ravi Dutt Sharma and Shri Harbaksh Singh, Advocate, on oath. After thus recording their statements, the learned Magistrate passed the following order :-

'PRESENT: Complainant in person. Arguments heard. From the perusal of preliminary evidence adduced by the complaintant including the statement of Public Witness . 2 Harbux Singh, I find that there arc sufficient grounds to proceed against accused No. 1, Amrik Singh only u/s. 468/471 IPC. No prima facie case to any other offence whatsover against the remaining accused is made out since there is no evidence appearing against them.

Accused Amrik Singh be summoned u/s. 468/471 Indian Penal Code for 2-5-1973 on P.F.'

On receipt of these summons, the petitioner, Amrik Singh Lyallpuri, filed a revision petition in the Court of Session and challenged the order of the learned Magistrate on the following grounds, namely :- (i) that the learned Magistrate had no territorial jurisdiction to take cognizance of the complaint ; (ii) that there was no prima fade evidence for issuing process against the petitioner; (iii) that the learned Magistrate did not apply his mind before passing the impugned order ; and (iv) that the learned Magistrate was precluded from talcing cognizance of the complaint by virtue of section 195(1)(c) Cr. P.C.

THElearned Additional Sessions Judge rejected all these conditions and dismissed the revision petition. The petitioner has, thereforee, filed the present revision petition in this Court.

(2) All the contentions that had been urged before the learned Additional Sessions Judge were also urged before me on behalf of the petitioner. There is hardly any merit in the first three contentions mentioned above. According to the complaint filed by Ravi Dutt Sharma, the Vakalatnama and the written statement which were filed by Sardar Harbaksh Singh Advocate in the suit had been forged in Delhi and were also filed in the Court of the Subordinate Judge, Delhi. The Judicial Magistrate 1st Class, Delhi, had, thereforee the territorial jurisdiction to take cognizance of the complaint. The averments in the complaint and the statements made by the complainant as well as Sardar Harbaksh Singh before the learned Magistrate disclosed a prima jacie case against the petitioner under sections 468 and 471 IPC. The order of the learned Magistrate which has been reproduced above is a speaking order and it shows that it was passed after due application of mind by the learned Magistrate. The fourth contntion, however, requires serious consideration.

(3) The Vakalatnama and the written statement which are alleged to be forged documents were documents which were produced in a proceeding in a court. However, only one of the persons who were made accused in the case filed by the complainant, namely, Shri Niranjan Das, was a party to the said suit. The other two accused, namely, the petitioner Amrik Singh Lyallpuri and Ram Singh, were not parties to the said suit. The learned Magistrate issued summons only against the petitioner Sardar Amrik Singh who was not a party to the said suit. The question for consideration is whether the learned Magistrate was precluded from taking cognizance of the case by virtue of section 195(l)(c) Cr. P.C. which reads as follows :-

'195(1).No Court shall take cognizance(c) of any effence 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 comitted 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 Courts to which such Court is subordinate.'

WHENdoes a Court take cognizance of an offence was explained by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee : AIR1950Cal437 as follows:-

'WHATis taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-Proceeding under S. 200 and thereafer sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.'

THISexplanation was approved by the Supreme Court in a number of cases, namely :- 1. R. R. Chari v. State of Uttar Pradesh : 1951CriLJ775 ; 2. Gopal Das Sindhi and another v. State of Assam and another AIR 1961 Sc 986 (3) ; and 3. Jamuna Singh and others v. Bhadai Shah : 1964CriLJ468 .

In the last mentioned case, the Supreme Court held as follows :-

'IT is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind turn proceeding under the various provisions of Chapter Xvi of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.'

(4) In the present case, the order of the Judicial Magistrate 1st Class directing the issue of summons to the petitioner Amrik Singh Lyallpuri under sections 468/471 Indian Penal Code clearly shows that before passing the said order he had perused the complaint, recorded the statements of the complainant and Harbaksh Singh, Advocate under section 200 Cr. P.C. and heard arguments. He had also applied his mind to the question whether the preliminary evidence recorded by him had made out a prima facie case against all the accused mentioned in the complaint or against some of them and he came to the conclusion that a prima facie case was made out only against the petitioner Amrik Singh Lyallpuri and that no prima facie case had been made out against the other accused persons. He had then passed an order under section 204 Cr. P.C. directing the issue of summons only against the petitioner under sections 468 and 471 IPC. Inasmuch as he had held that there was no prima fade case made out against the other accused and did not issue any summons against them, it must be presumed that he had dismissed the complaint so far as the other accused were concerned. thereforee, what the learned Magistrate had done was that he recorded the statements of the complainant and another witness under section 200 Cr. P.C., dismissed the complaint under section 203 Cr. P.C. against two of the accused and passed an order under section 204 Cr. P.C. against the petitioner Amrik Singh Lyallpuri. The learned Magistrate should have done all this only after taking cognizance of the offence, because section 200 Cr. P.C. becomes applicable only after the Magistrate had taken cognizance of an offence.

(5) But the Magistrate was precluded from taking cognizance of an offence under sections 468/471 Indian Penal Code by virtue of section 195(1)(c) Cr. P.C. when such an offence was alleged to have been committed by a party to any proceeding in any Court. According to the complaint filed by Ravi Dutt Sharma, an offence under sections 468/471

(6) I Pc was alleged to have been committed by Niranjan Das also who being the plaintiff in the suit was a party to a proceeding in a Court. The position would be different if it was alleged in the complaint that the petitioner Amrik Singh Lyallpuri only or the petitioner and Shri Ram Singh had committed an offence under sections 468/471 IPC. The Magistrate then could have taken cognizance of the offence against these persons as they were not parties to a proceeding in a Court. The fact that the learned Magistrate directed the issue of summons only against the petitioner did not mean that he had taken cognizance of the offence only against the petitioner. He had taken cognizance of the offence against all the three accused persons mentioned in the complaint, but after an inquiry under section 200 Cr. P.C. had come to the conclusion that there was a prima facie case only against one of the persons mentioned in the complaint and not against the others. As the learned Magistrate was not competent to take cognizance of the offence at all, the subsequent proceedings taken by the learned Magisrate under section 200 and the passing of an order under section 204 were also without jurisdiction.

THErule laid down by the Supreme Court in Patel Laljibhai Somahhai v. The State of Gujarat : 1971CriLJ1437 which has been relied upon by the learned Additional Sessions Judge does not apply to the present case and docs not support and validate the order of the learned Magistrate issuing summons to the petitioner. In that case, one Patel Laljibhai Somabhai had filed a suit against Vora Safakat Huseian Yusufali and his brother for recovery of Rs. 2,000.00 on the basis of a cheque alleged to have been issued by the said Vora Safakat Huseian Yusufali. The defense in the suit was that the cheque in question was forged. The suit was dissmed and subsequently Vora Safakat Huseian Yusufali filed a complaint under sections 467 and 471 Indian Penal Code against the' plaintiff Patel Laljibhai Somabhai and another by name Vora Saifuddin Akbarali alleging that Vohra Saifuddin Akbarali, who was a close relation of the complainant, had forged the cheque and had handed it over to Patel Laljibhai Somabhai for the purpose of filing the suit. The Supreme Court held that the offence under section 471 Indian Penal Code was clearly covered by the prohibition contained in section 195(1)(c), but the offence under section 467 Ipc could be tried in the absence of a complaint by the Court unless it was shown by the evidence that the documents in question were forged by the party to the earlier proceeding in its character as such party. In so holding, the Supreme Court made the following observations :-

'THEpurpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in section 195(1)(b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of a criminal trial of the guilty party.'

Ifail to see how the decision of the Supreme Court in this case supports the maintainability of the complaint against the petitioner in the present case. The signing of the Vakalatnama as well as the written statement by the petitioner was directly concerned with the proceedings in the Court and according to the complainant, the plaintiff in the suit, Niranjan Das, was responsible for the filing of the Vakalatnama and the written statement by the petitioner. The offence under sections 468 and 471 Indian Penal Code was, thereforee, committed in respect of documents produced in a proceeding in a Court. The said offence is directly covered by section 195(1)(c) Cr. P.C. and without a complaint by the Court, the Magistrate could not take cognizance of this offence. As observed earlier, if the complainant had not imp leaded Niranjan Das as an accused along with the petitioner, then the Magistrate could have taken cognizance of the offence alleged against the petitioner.

(7) In view of the above discussion, it must be held that the learned Magistrate had no jurisdiction to take cognizance of the offence against the petitioner and to pass the impugned order directing the issue of summons to the petitioner under sections 468 and 471 IPC. The said order of the learned Magistrate is, thereforee, quashed and the revision petition is allowed.


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