K.S. Lodha, J.
1. This application under Section 482 Cr.P.C. has been filed by Katar Singh with the request that the order of the learned Munsif and Judicial Magistrate, Padampur, dated 31-3-83 maybe set aside and the proceedings pending before him may be quashed.
2. The facts giving rise to this application briefly stated are that the non-petitioner No. 2 Jugraj Singh filed a complaint against the petitioner Kartar Singh and others for offences under Sections 468, 423, 120B, 199, IPC etc. It was alleged that the complainant and the accused Kartar Singh were brothers. They had an elder brother Saudagar Singh. Saudagar Singh used to live with the complainant and before a few days of his death, Kartar Singh had taken away Saudagar Singh to his house on the pretext that he will get him treated. However, there he forged a will purporting it to have been executed by Saudagar Singh in favour of the minor sons of Kartarsingh. The other accused persons and the complainant are said to be parties to the conspiracy to the forgery and some of them were alleged to be the attesting witnesses thereof. It also alleged that Saudagar Singh did not even go to the office of the Sub-Registrar but the accused had impersonated him. This complaint was sent to the police under Section 156(3) Cr.P.C. The police after investigations, filed a final report on 21-6-80. The complainant then filed a protest petition. The learned Magistrate after hearing the complainant, refused to accept the final report and took cogizance of the offences under Sections 468, 423, 120B against the petitioner Kartar Singh and some other accused persons and for some other offences against some of the other accused persons also. Processes were issued against the accused persons.
3. After the accused persons appeared before the learned Magistrate the learned Magistrate framed charges for offences under Sections 468, 423, 120B and 199 IPC against the accused persons. They pleaded not guilty and claimed to be tried. Before the trial could proceed further an application was made on behalf of the accused challenging the territorial jurisdiction of the Court. However, that application was rejected on 19-10-81. Later another application was filed under Section 125(1)(a) objecting to the cognizance being taken against the accused persons under Section 468, and the allied offences on the ground that before the cognizance was taken, an application for probate on the alleged will had been filed and the will had been produced before the court of the learned District Judge, Ganganagar. Therefore, unless a complaint was filed by the court in Which the will had been produced, the criminal court could not take cognizanee of the offence under Section 468 IPC. The learned Magistrate after hearing the parties in respect of this application, rejected the same by his order dated 13-3-83. This order is being challenged now,
4. It may be mentioned here that application under Section 482 Cr.P.C., a prayer was also made that the earlier orders of the learned Magistrate dated 23-10-80 and 10-10-81 may also be quashed but when the attention of the learned Counsel was drawn to the fact that by this application under Section 482 Cr.P.C. he cannot be allowed to challenge 3 orders, the learned Counsel restricted this application to the order dated 31-3-83 only. He, however, further urged that if the order dated 31-3-83 is set aside and it is held that cognizance could not have been taken by the learned Magistrate in this case, then the order dated 23-10-80 would automatically come to an end.
5. I have heard the learned Counsel for the parties as also the learned P.P.
6. There is no dispute about the fact that cognizance of the offence under Section 468 IPC had been taken against the petitioner by the learned trial court on 23-10-80. There is also no dispute that before that date an application for grant of probate on the disputed will had already been filed and the will had been presented before the learned District Judge, Sriganganagar on 3-7-80. The question which arises for consideration in these circumstances is whether the learned Munsif and Judicial Magistrate could have taken cognizance of the offence under Section 468 IPC in view of the provisions of Section 195(1)(b)(ii) read with Section 340 Cr.P.C.
7. It is contended by the learned Counsel for the petitioner that since before the cognizance of the offence under Section 468 IPC had been taken by the learned Magistrate on 23-10-80, the will in dispute had already been produced before the court in the probate proceedings and, therefore, the bar contemplated under Section 195(1)(b)(ii) would clearly apply to the present case as the aforesaid provision clearly debars the court from taking cognizance in such circumstances. In support of his contention, he has placed reliance upon Rampal Singh v. State of U.P. 1982 CRI LJ 424 and Gopal Krishna Menon v. D. Raja Reddy 1983 SCC (Cri.) 822. On the other hand, the learned Counsel for non-petitioner No. 2 who has contested this application urged that since the offence in question had already been committed before the probate proceedings started and a complaint had also been filed before the probate proceedings started, the prohibition against cognizance contained in Section 195(1)(b)(ii) Cr.P.C. would not apply and there fore, the learned Magistrate was perfectly justified in passing the order dated 31-3-83. He placed reliance upon Legal Remembrancer Govt. of W.B v. Haridas : 1976CriLJ1732 . I have given my careful consideration to the rival contentions and in my opinion, the contention put forward by the learned Counsel for the petitioner must be accepted. The authority relied upon by the learned Counsel for the non-petitioner No. 2 is not applicable in as much as it is based on the unamended provisions of Section 195. The present Section 195(1)(b)(ii) as now stands, is quite different from the provisions considered in that case.
8. The relevant portion of Section 195(1)(b)(ii) reads asunder:
No Court shall take cognizance of any offence described in Sec don 468, or punishable under Section 471, Section 475 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 proceedings in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
A bare perusal of this section would show that if an offence as referred to above in the section is alleged to have been committed in respect of a document which has been produced or has been given in evidence in a proceeding in any court then no court shall take cognizance of that offence except when a complaint is made by that court in which that document has been produced or by some court to which that court is subordinate. In other words, when a document is produced in a court or given in evidence and an offence referred to in Sub-clause (ii) of Clause (b) of Sub-section (1) of Section 195 Cr.P.C. is alleged to have been committed in respect of that document, then it is only the court in which that document is produced or a court to which that court is subordinate, which can make a complaint, if necessary, as required by Section 340 of the Criminal Procedure Code and then alone the criminal court can take cognizance of that offence. In the absence of such a complaint by that court, the criminal court cannot take cognizance of that offence on any other complaint or police report etc. The provisions of Section 195(1)(b)(ii) have been examined by their Lordship or the Supreme Court in Gopal Krishna Menon case (supra) and the view propounded is as under:
If Section 195(1)(b)(ii) is attracted to the facts of the present case, in the absence of a complaint in writing of the civil court, where the alleged forged receipt has been produced, taking of cognizance of the offence would be bad in law and the prosecution being not maintainable, there would be absolutely no justification to harass the appellants by allowing prosecution to have a full dressed trial.
The same view also appears to be taken by the Allahabad High Court in Rampal Singh's case (supra) although in a little different context. Now appling this principle to the present, case, it clearly appears that the learned Magistrate was not justified in taking cognizance of offence under Section 468 IPC. In the present case because before the cognizance was taken by him on 23-10-80, the will in dispute had already been filed in the court of the learned District Judge, Srigananagar, in connection with the probate proceedings. Since the will had been produced in the court the provisions of Section 195(1)(b)(ii) were clearly attracted.
9. The contention of the learned Counsel for non-petitioner No. 2 that the offence is alleged to have been committed before the probate proceedings start and the complaint had also been filed before that is in my opinion, of no significance because the prohibition contained in Section 195(1)(b)(ii) is against the cognizance being taking in respect of a document, which has been produced or given in evidence in a court irrespective of the fact when the offence is alleged to have been committed or when the complaint has been filed. The filing of the complaint is not of consequence. It is the taking of the cognizance which is important in view of Section 195.
10. In the present case, the matter does not rest merely at that. As a matter of fact, even according to the complainant himself, before he filed the complaint, he himself had filed a suit for declaration against Kartar Singh in which it was alleged that Kartar Singh had forged the will in dispute and that suit was pending when the present complaint was filed. That being so, it appears that the present complaint had been filed after the question about the genuineness of the will b(M? already been brought before the court. In these circumstances I am clearly of the opinion that the learned Magistrate could not have taken cognizance of the offence under Section 468 IPC against the present petitioner. The other offence for which the cognizance has been taken are only offences arising out of the said document, which is alleged to haze been forged. Therefore, those offences also could not be separated from the offence under Section 468 IPC and cognizance thereof also could not have been taken.
11. Although other accused have not come up before this Court, the order deserves to be quashed as a whole because it relates to the same offences regarding document, the cognizance of which is barred under Section 195(1)(b)(ii).
12. I, therefore, allow this application and quashed the order of the learned Magistrate taking cognizance against the petitioner and other accused persons of the aforsaid offences.