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Dharam Chand and ors. Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Petition No. 30 of 1984
Judge
Reported in1985(1)WLN598
AppellantDharam Chand and ors.
RespondentThe State of Rajasthan and anr.
DispositionApplication allowed
Cases ReferredAllahabad High Court and Gopalakrishna Menon v. D. Raja Reddy
Excerpt:
.....harassment to the petitioners and they will have to unnecessarily face the investigations and appear before the police from time to time for the purpose of interrogation etc. in the second place, the investigations would also not be of much help to the court, which may be required to file a complaint under section 340 cr. p.c.;application accepted - - 2 that the complaint clearly makes out the offences alleged and that even though the cognizance of the offences may be barred till a complaint is filed by the court as envisaged by section 195(1)(b)(ii) read with section 340 cr. therefore, i am clearly of the view that no court will be able to take cognizance of these offences unless a complaint is filed by the court before which the aforesaid forged documents have been..........urged by the learned counsel for non-petitioner no. 2 that the complaint clearly makes out the offences alleged and that even though the cognizance of the offences may be barred till a complaint is filed by the court as envisaged by section 195(1)(b)(ii) read with section 340 cr. p.c., the investigations of the case would not be barred. on the other hand, these investigations may facilitate the court before whom the documents have been filed in the civil suit to consider the question of expediency of filing the complaint.5. i have given my careful consideration to these contentions and in my opinion, the second ground itself is sufficient to dispose of this application. a bare reading of section 195(1)(b)(ii) would go to show that if the alleged offence is one described in section.....
Judgment:

K.S. Lodha, J.

1. This application Under Section 482 Cr. P.C. has been filed on behalf of the 19 petitioners against whom the Police is investigating a case for offences Under Sections 120B, 465, 467 and 471 I.P.C. on a complaint forwarded to it by the learned Munsif & Judicial Magistrate, Karanpur, Under Section 156(3) Cr. P.C.

2. I need not state the facts of the case at length because this application can be disposed of on a short point. Suffice it to say that the complainant Shri Inder Prasad had filed this complaint for the aforesaid offences alleging that the present petitioners had conspired and fabricated the resolutions dated 16-8-1983 and 28-3-1983 with a view to defame the complainant and to harm him. The complainant had before the filing of this complaint also filed a civil suit for declaration of the aforesaid resolutions as void & ineffective and for a permanent injunction restraining the present petitioners from interfering with his working as a Principal of Gyan Jyoti Siksha Samiti, Srikaranpur on 6-9-1983 whereas the complaint was filed on 1-12-1983.

3. The case of the petitioners is that no offences as alleged in the complaint are made out from the complaint and, therefore, the investigations in the case would result into unnecessary harassment to them and in the second place, it has been urged that as a civil suit had already been filed in which the alleged forged resolutions have already been produced before the court, cognizance of the offences Under Sections 465, 467, 469 and 471 I.P.C. would be barred in view of Section 195(1)(b)(ii) unless a complaint is filed by the court in which the alleged forged documents have been produced in accordance with Section 340 Cr. P.C. and therefore, no useful purpose would be served by the investigations by the police at this stage on this complaint.

4. On the other hand, it has been urged by the learned Counsel for non-petitioner No. 2 that the complaint clearly makes out the offences alleged and that even though the cognizance of the offences may be barred till a complaint is filed by the court as envisaged by Section 195(1)(b)(ii) read with Section 340 Cr. P.C., the investigations of the case would not be barred. On the other hand, these investigations may facilitate the Court before whom the documents have been filed in the civil suit to consider the question of expediency of filing the complaint.

5. I have given my careful consideration to these contentions and in my opinion, the second ground itself is sufficient to dispose of this application. A bare reading of Section 195(1)(b)(ii) would go to show that if the alleged offence is one described in Section 463 or punishable Under Sections 471, 475 or 476 Cr. P.C. and is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, the criminal court shall take cognizance of such an offence only upon a complaint by the court before whom the document has been so produced or given in evidence or by the court to which that court is subordinate. It is not disputed before me that the offences alleged in the present case fall within the ambit of Section 195(1)(b)(ii). The contention of the learned Counsel for non-petitioner No. 2, however, is two fold. In the first instance, he urged that in order attract the provisions of this sub-section, the offence must have been committed in respect of the document after it had been filed in the court but if the document is alleged to have been forged before the commencement of the proceedings before the court this sub-section will have no application and in this connection, he has placed reliance upon Philip v. Raphael and Ors. 1984 (2) Crimes 684, a decision of a learned single Judge of the Kerala High Court, I have considered this contention and have carefully gone through the authority relied upon by the learned Counsel but I am unable to accept this contention as, in my opinion, the fact that the document is alleged to have been forged before it was produced or given in evidence in court does not detract from the provisions of Section 195(1)(b)(ii). I had an occasion to consider this aspect of the matter in another case Kartar Singh v. State of Rajasthan and Anr., S.B. Criminal Misc. Petition No. 352/83 decided on 29-11-84 and I have concluded that even if the document is alleged to have been forged before the commencement of the proceedings in the court, the bar contained in Section 195(1)(b)(ii) shall apply if the document has already been filed in a court before the cognizance of an offence referred to in this section is taken by the criminal court. I am supported in this view by the authorities reported in Ram Pal Singh v. State of U.P. 1982 Cri. LJ 424, a decision of a Division Bench of the Allahabad High Court and Gopalakrishna Menon v. D. Raja Reddy 1983 SCC (Cri.) 822. It is pertinent to note that the Kerala case, the learned single Judge had relied upon a decision of the learned single Judge of the Allahabad High Court but that decision has already been over ruled by the Division Bench of the Allahabad High Court in Rampal Singh's case (supra). I am in respectful agreement with the later decision of the Allahabad High Court and when the matter is covered by the Hon'ble Supreme Court, I need not go into a further detailed discussion. It will not be out of place to mention here that in the Supreme Court case the facts were almost akin to the facts of the present case in as much as in that case a suit was filed on the basis of a receipt and after the filing of that suit, the defendant filed a criminal complaint against the plaintiff alleging forgery of his signature on the said receipt and thereby commission of offence punishable Under Sections 467, and 471 I.P.C. Before the criminal court, an objection was taken that in the absence of complaint from the court, the prosecution was barred in view of Section 195(1)(b)(ii) of the Code. This objection was disallowed by the High Court & the matter went before the Hon'ble Supreme Court, their Lordships came to the conclusion that the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable. They further observed as under:

As we are of the view that if the prosecution is allowed to continue serious prejudice would be caused to the appellants and they would be called upon to face a trial which would not be sustainable.

Therefore, I am clearly of the view that no court will be able to take cognizance of these offences unless a complaint is filed by the court before which the aforesaid forged documents have been produced. It is not in dispute that no such complaint has been filed by the court.

6. The next limb of argument of the learned Counsel for non-petitioner No. 2 was that even if Section 195(1)(b)(ii) Cr. P.C. is applicable to the present case it is only the cognizance of the case which would be barred but the investigations would not be barred. According to him, therefore, there is no reason to quash the investigations. In my opinion, this contention also cannot be sustained. In the first place, when the cognizance of the offence cannot be taken except on the complaint of the court before whom the alleged forged documents have been filed, no useful purpose will be served by continuing the investigations. On the other hand, the continuance of the investigations would amount to unnecessary harassment to the petitioners and they will have to unnecessarily face the investigations and appear before the police from time to time for the purpose of interrogation etc. In the second place, the investigations would also not be of much help to the court, which may be required to file a complaint Under Section 340 Cr. P.C. because Under Section 340 Cr. P.C., the court before making such complaint must be of opinion that it is expedient in the interest of justice that an enquiry should be made into offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have committed.... record a finding to that effect and, therefore, it is for that court to decide whether any such enquiry has to be made or not and before that court arrives to such a finding, no enquiry or investigation is envisaged.

7. For the aforesaid reasons, I am clearly of the opinion that the investigations of this case should not be allowed to continue. I therefore, accept this application and quash the investigations on the complaint sent to the police Under Section 156(3) Cr. P.C.


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