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Memon Haji Oomer Noormamad Patel Vs. Memon Bai Haji Aisha Suleman and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR159
AppellantMemon Haji Oomer Noormamad Patel
RespondentMemon Bai Haji Aisha Suleman and ors.
Cases ReferredDutt v. State of U.P.
Excerpt:
- - 19. i fail to understand as to how the observations of the supreme court in the aforesaid case assist mr......which arises for my consideration in the present criminal revision application is whether the learned magistrate was justified in dropping the proceedings before him and in releasing the accused persons in respect of the complaint filed against the accused persons in regard to certain offences alleged to have taken place before the mamlatdar and the insolvency court having regard to section 195 of the code of criminal procedure, 1898.2. in order to appreciate the point canvassed by mr. suresh m. shah the learned advocate for the petitioner-original complainant, a few relevant facts may be stated.3. the petitioner-complainant had purchased hundis of rs. 22,000/- in may, 1966 from one haji amad mamad dada habib jiya at dhoraji. the said firm went into insolvency, and in the insolvency.....
Judgment:

A.N. Surti, J.

1. The short question which arises for my consideration in the present criminal revision application is whether the learned Magistrate was justified in dropping the proceedings before him and in releasing the accused persons in respect of the complaint filed against the accused persons in regard to certain offences alleged to have taken place before the Mamlatdar and the Insolvency Court having regard to Section 195 of the Code of Criminal Procedure, 1898.

2. In order to appreciate the point canvassed by Mr. Suresh M. Shah the learned advocate for the petitioner-original complainant, a few relevant facts may be stated.

3. The petitioner-complainant had purchased Hundis of Rs. 22,000/- in May, 1966 from one Haji Amad Mamad Dada Habib Jiya at Dhoraji. The said firm went into insolvency, and in the insolvency proceedings, the creditors of the firm were given rateable distribution by the Receiver. The petitioner was ordered to be paid Rs. 9900/- in respect of his aforesaid claim of Rs. 22,000/-

4. Opponent No. 1 Bai Aisha, the mother of one of the partners of the aforesaid firm raised an objection to the aforesaid payment being made to the petitioner. Thereafter, the Court passed an order to give the said amount to Bai Aisha on her furnishing the necessary solvency certificate. It may be stated at this stage that the petitioner had also filed Special Suit No. 42 of 1972 in the Court of the learned Civil Judge, (Senior Division), at Gondal against the afore said firm in respect of the hundis. In that suit, Bai Aisha-opponent No. 1 appeared as power-of-attorney-holder and she furnished security in that suit and obtained the amount of Rs. 9900/- In pursuant to the order of the Court Bai Aisha-opponent No. I had furnished the necessary surety also. For that purpose, she was required to furnish solvency certificate for her surety.

5. One Haji Noormamad Haji Vali Mamad Gharana of Dhoraji had died on 28-9-1971. He had purchased one house at Dhoraji for Rs. 2200/- in the year 1934 from his father-in-law. He mortgaged the said house by a deed dated September 28, 1938 to Memon Haji Mamad Dada, the husband of Bai Aisha-opponent No. 1. Haji Noormamad did not pay the mortgage dues. The mortgaged property was, therefore, sold through Court in an auction held by the Courts. Husband of Bai Aisha purchased the property in the year 1942-43. Bai Aisha was given divorce by her husband Haji Mamad Dada. When he died his son Haji Amad was a minor, and, therefore, one Abdul Karim Mavivala and Haji Oomar Amad were managing the properties as the trustees of the minor. They were recovering the rent from the tenants of the property. After attaming majority Haji Amad went to Pakistan. He gave this property-in gift to his daughter Fazal. The property was managed by her mother Hamida and her grand mother Bai Aisha. Opponent No. 1 was recovering rent from the tenants as guardian of minor Fazal.

6. Bai Aisha, wanted a surety with a solvency certificate to furnish the same in the Court of the Civil Judge, S.D., Gondal to withdraw the amount of Rs. 9900/-. Though Noormamad Haji Vali Mamad was dead on 28-9-1971, she got up opponent No. 2 Jusab Suleman and represented before the Mamlatdar that opponent No. 2 was deceased Noormamad Haji Vali Mamad. The allegation against opponent No. 1 was that she wrongly got up opponent No. 2 to represent the deceased, and that opponent No. 2 impersonated as Noor Mahmad Haji Vali Mamad deceased. Opponent No. 2 also filed an affidavit before Aval Karkun Shri Chhaya in the office of the Mamlatdar, Dhoraji in the name of Noor Mahmad Haji Vali Mamad (deceased), in the affidavit, opponent No. 2 was identified as Noor Mahmad Haji Vali Mamad deceased by opponent No. 4. Thereafter the panchnama of the property was drawn up by opponent No. 3 Narmadshanker Jagjivan and he valued the aforesaid property for Rs. 32,000/-. This Narmada shanker i.e. opponent No. 3 was serving as Talati in the office of the Mamlatdar at that time. It was alleged that opponent No. 3 did not see the property and had made a false panchnama. Under the circumstances, the Mamlatdar, Dhoraji in pursuance of the aforesaid affidavit and the panchnama issued the necessary solvency certificate to opponent No. 2 and opponent No. 1 producer the same before the Court of the Civil Judge, S.D., Gondal and opponent No. 2 stood as surety of opponent No. I in the name of Noor Mahmad the deceased. Under these circumstances, Bai Aisha-opponent No. 1 withdrew the amount of Rs. 9900/-.

7. The petitioner-complainant filed a criminal complaint in the Court of the learned Judicial Magistrate, First Class, Dhoraji on May 5, 1973 against opponents Nos. 1 and 3 and 4 and against Shri Snthar, the Mamlatdar of Dhoraji and Patel Jetha Jaga Babaria and Gafar Mamad Navivala. These two persons were panchas in the panchnama drawn by the Talati. The learned Magistrate sent the complaint to P.S.I. Dhoraji under Section 156(3) of the Code of Criminal Procedure for investigation. The P.S.I. Dhoraji after investigation, submitted the necessary charge-sheet against present opponents Nos. 1 to 4 in the Court of the Judicial Magistrate, First Class. Dhoraji on 6th September, 1974, which was registered as Criminal Case No. 416 of 1975. In that case an application was given by the accused persons that the Court of the Judicial Magistrate, First Class. Dhoraji had no jurisdiction to try the case as the alleged offences were committed within the jurisdiction of the learned Judicial Magistrate, First Class, Gondal. After hearing the parties, learned Magistrate came to that conclusion that he had no jurisdiction to try the aforesaid case and that the learned Judicial Magistrate First Class, Gondal had the jurisdiction to try the case. Under the circumstances, he returned the charge-sheet to the police to produce the same before the learned Judicial Magistrate, First Class, Gondal. Accordingly, the charge-sheet was then presented before the learned Judicial Magistrate, First Glass, Gondal and the case was registered as Criminal Case No. 343 of 1975.

8. The learned Magistrate at Gondal by his order dated 2nd September, 1975 came to the conclusion that the proceedings against the accused persons should be dropped and ordered them to be released. He came to the conclusion that the solvency certificate was produced in a legal proceeding before the Court of Civil Judge, (Senior Division), and, therefore, it was not open to him to take cognizance of the alleged offences except on the complaint in writing of such court or of some other court to which such court is subordinate.

9. The petitioner was aggrieved at the order passed by the learned Judicial Magistrate, First Class, Gondal, and preferred Criminal Revision Application No. 18 of 1975 in the court of the learned Additional Sessions Judge, Gondal, who dismissed the revision application filed by the petitioner-complainant.

10. It is under these circumstances that the present criminal revision application is filed in this Court.

11. At the time of hearing of this application, Mr. S.M. Shah, the learned advocate for the petitioner produced before me the copy of the complaint which was filed by the complainant initially in the court of the learned Judicial Magistrate, First Class, Dhoraji. He read out before me some allegations contained in the complaint. He pointedly invited my attention to the contents of para 2 of the complaint. The complaint is in Gujarati language. To translate into English, the allegation of the complainant is that Haji Noor Mamad Haji Vali Mamad Charana died on September 28, 1971 and the complainant had produced the necessary death certificate in that behalf from Dhoraji Nagarpalika. It is alleged that in spite of this definite knowledge, opponent No. 1 entertained the criminal intent and produced an imposter before the Mamlatdar (i.e. opponent No. 2) and he made false affidavit before the Mamladar. It is also alleged that in this manner, a false solvency certificate was obtained by the opponents from the office of the Mamlatdar. It is also alleged in para 3 of the complaint that opponent No, 3, the Talati, had made and prepared a false panchnama in regard to the valuation of the property. It is also alleged that the maker of the affidavit was wrongly identified by opponent No. 4 as disclosed from the complaint read with the papers of the investigation. Thus, Mr. Shah submitted that when specific and pointed allegation are made against opponents Nos. 1 to 4 as stated above, the learned Magistrate is bound to inquire against those allegations, particularly when the learned Magistrate had received the complaint in respect of those allegations which constitute the commission of offences before the Mamlatdar. He stated that both the Courts committed an error in law in coming to the conclusion that as the Court or some other Court to which such court is subordinate has not filed the complaint in the Court of the learned Magistrate, the proceedings should be dropped and the accused persons should be released.

12. Section 195 of the Code of Criminal Procedure 1898 postulates the prosecution for contempt of lawful authority of public servants, the prosecution of certain offences against public justice and prosecution for certain offences relating to documents given in evidence.

13. Section 195(1) provides that,

No Court shall take cognizance-

(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate;

14. This is a case where the aforesaid allegations made in the complaint do not refer to any offences punishable under Sections 172 to 188 of the Indian Penal Code. And hence Section 195(1)(a) of the Code of Criminal procedure cannot be attracted.

15. Section 195(1)(b) and (c) of the Cr. P. C. 1898 provide as follows: 'No Court shall take cognizance-

(b) of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211'. and 228, when such offence is alleged to have been committed in, or in relation to any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or

(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.

In Clauses (b) and (c) of Sub-section (1) of-Section 195 Cr. P.C. 1898, the term 'court' includes a Civil. Revenue or Criminal Court, but does not include a Registrar or sub-Registrar under the Indian Registration Act, 1877.

16. Mr. S.M. Shah urged that the learned Magistrate was not justified in not taking cognizance of the alleged offences which had taken place before the Mamlatdar, particularly when the Mamlatdar was discharging an administrative function and that when he was not acting as 'Court'.

17. There is lot of substance and force in the submission of Mr. Shah. This is a case where before the Mamlatdar, who was not functioning as a Court, opponent No. 1 Bai Aisha put up an impostor, who represented that he was deceased Noormamad Haji Vali Mamad. It is alleged that for securing the solvency certificate opponent No. 2 posed himself as deceased Noormamad and made a false representation before the Mamlatdar who was not discharging his functions as 'Court.' Opponent No. 4 wrongly identified opponent No. 2 as deceased Noormamad as can be seen from the complaint and the papers of investigation. Opponent No. 3 who was a Talati was also responsible for making a panchnama of the property which was overvalued at Rs. 35,000/-. In view of these allegations, it is clear to my mind that the learned Magistrate was bound to take cognizance of the said allegations as set out in the complaint, and which if proved would constitute the commission of the offences before the Mamlatdar, who was not working as a 'Court'. In this view of the matter, both the Courts committed an error in law in coming to the conclusion that as the complaint in writing was not filed by the Court or some other court to which such court is subordinate in the Court of the learned Magistrate, the proceedings should be dropped against accused persons.

18. Mr. D.U. Shah, the learned advocate appearing for opponent No. 1 strongly urged before me that the learned Magistrate was justified in insisting for a complaint in writing from the Civil Court having regard to the provisions of Section 195 of the Code of Criminal Procedure. Mr. D.U. Shah invited my attention to the decision of the Supreme Court in Durgacharan v. State of Orissa : 1966CriLJ1491 . Paragraph 8 of the said decision is in the following terms:

We have expressed the view that Section 195 Cr. P.C. does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of Section 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the I.P.C., though in truth and substance mentioned in Section 195, Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, Cr.P.C. prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.

19. I fail to understand as to how the observations of the Supreme Court in the aforesaid case assist Mr. Shah's client in any manner whatsoever. In the case before me, the petitioner-complainant's grievance is that the learned magistrate should at least inquire into allegations which constitute offence before the Mamlatdar who was not functioning as 'Court' at the relevant time. In this view of the matter, the aforesaid case has no application to the facts of the present case.

20. Mr. D.U. Shah, also invited my attention to the reported decision of the Supreme Court in Dutt v. State of U.P. : 1966CriLJ459 , and urged that it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under Section 195 of the Code of Criminal Procedure. If the offence was under Section 196, Penal Code, a complaint in writing by the Court concerned was required. Before a complaint was made the Court had to consider whether it was expedient in the interest of justice to order a prosecution. In the lesser offence no such complaint by the Court was necessary and obviously the leaser offence was chosen to bypass the Court.

20.1 In both the cases, which Mr. D.U. Shah cited at the bar, both the cases referred to the commission of the offences before the Court. In the case before me the grievance of the petitioner-complainant was that certain offences had taken place before the Mamlatdar who was not functioning as a Court, and hence, Section 195, Cr. P.C. cannot be pressed into service in aid of the accused persons. Mr. D.U. Shah also urged that there are allegations in the complaint which indicate that the accused persons have conspired to commit the offences, and hence, it was necessary that the necessary sanction to prosecute should be obtained having regard to Section 196(a) Cr. P.C, 1898. This is not a case where the prosecution alleged that there was some conspiracy against the State and therefore, these is no substance or merit in the said argument of the advocate for opponent No. 1, accused

21. As a result of the aforesaid discussion, I set aside the orders passed by the subordinate-courts and direct the learned Judicial Magistrate, First Class, Gondal to take on his file Criminal Case No. 343 of 1975 and inquire into the allegations made against the opponents which would constitute the commission of the offences before the Mamlatdar, who was not functioning as Court at the relevant time. If the learned Magistrate comes to a conclusion that there are allegations which would constitute the commission of the offences before the Court, he shall not proceed to take cognizance of the same unless he receives the complaint from the Court of the Civil Judge, (Sr. Dn.), Gondal. Accordingly, the revision application is allowed and the rule is made absolute to the aforesaid extent only.


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