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Subhkaran Singh Vs. Kishan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Criminal
CourtRajasthan High Court
Decided On
Judge
Reported in2009CriLJ2298; RLW2009(3)Raj2117
AppellantSubhkaran Singh
RespondentKishan Singh and ors.
DispositionPetition allowed
Cases ReferredIqbal Singh Marwah v. Meenakashi Marwah
Excerpt:
.....is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. to consider the question of expediency of prosecution and to complain and there is also a right of appeal conferred by section 476b on a person on whose application the, court has refused to make a complaint under section 476 or section 476a or against whom such a complaint has been made. the hon'ble supreme court had, therefore, clearly rejected..........affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence of court. any offence committed with respect to a document at a time prior to its production or giving in evidence in court cannot, strictly speaking, be said to be an offence affecting the administration of justice.23. in view of the language used in section 340, cr.p.c. the court is not bound to make a complaint regarding commission of an offence referred to in section 195(1)(b), as the section is conditioned by the words 'court is of opinion that it is expedient in the interest of justice.' this shows that such a.....
Judgment:
ORDER

Raghuvendra S. Rathore, J.

1. This criminal misc. petition has been filed against the order dated 14-12-1989 passed by the learned Additional Chief Judicial Magistrate, No. 1, Alwar, whereby he had rejected the protest petition filed by the petitioner and accepted the Final Report, submitted by the investigation agency in F.I.R. No. 24/1985. Being aggrieved of the said order, the complainant-petitioner preferred a revision petition and the same came to be dismissed by the learned Additional Sessions Judge, No. 2, Alwar on 2-7-1998.

2. Briefly stated, the facts of the case are that the complainant-petitioner had lodged a report on 17-2-1985, at Police Station Malkhera, District Alwar, for the offences under Sections 120-B, 416, 467, 468 and 420, I.P.C. After registration of the report, the police investigated the matter and came to the conclusion that no offence was made out and, as such, they submitted a Final Report before the concerning Court. The petitioner-complainant then filed a protest petition before the learned Magistrate. Thereafter, the statement of the petitioner and his witnesses were recorded. The learned trial Court, by the order impugned dated 14-10-1989, dismissed the protest petition and accepted the Final Report submitted by the investigation agency. The protest petition was dismissed on the ground that since the petitioner had filed a civil suit and accused persons were party in the said suit, it is the Civil Court alone which was competent for initiation of criminal proceedings under the alleged offences, in view of the provision of Section 195, Cr.P.C.

3. Being aggrieved of the said order passed by the learned Magistrate, the petitioner filed a revision petition before the learned Sessions Judge. The primary contention raised by the complainant-petitioner, before the revisional Court, was that the bar contained under Section 195, Cr.P.C. is not applicable because the alleged forged documents were created before filing of the civil suit. However, the revisional Court dismissed the petition on 2-7-1998, upholding the order passed by the learned Magistrate, and held that the Civil Court was the appropriate forum for initiating the criminal proceedings. Hence, this criminal misc. petition has been filed before this Court.

4. At the outset, it may be noted that in view of the aforesaid facts and circumstances and the stage of the criminal proceedings i.e. the protest petition had been dismissed and the Final Report filed by the police was accepted, so far as the non-petitioners are concerned, they are not made accused so far. Therefore, impleadment of the non-petitioners as party by the complainant-petitioner is nothing but misjoin-der of the parties.

5. However, coming to the merits of the case, the learned Counsel for the petitioner has primarily submitted that both the Courts below have erred in holding that in the instant case, the Civil Court alone was the Court competent to initiate criminal proceeding against the alleged accused persons because the forged documents in question had been filed before it. The submission of the learned Counsel for the petitioner is that in case a document is forged prior to its submission before the Civil Court then the bar under Section 195, Cr.P.C. is not attracted. He has further submitted that in the instant case, the Civil Court was not competent to initiate the criminal proceedings against the alleged accused persons because they had created the forged documents before submission of the same in the Civil Court.

In support of his submission, he has heavily placed reliance upon the case of Sachida Nand Singh and Anr. v. State of Bihar and Anr. : 1998CriLJ1565 . On the said premise, the learned Counsel for the petitioner has submitted that the Courts below had committed illegality in passing the impugned orders, as the bar under Section 195, Cr.P.C. was not at all attracted in the instant case. Therefore, it is submitted that the process should be issued against the persons and criminal proceedings should be initiated by the learned Magistrate.

6. On the other hand, the learned Public Prosecutor assisted by the counsels for the non-petitioners have supported the orders passed by the learned Courts below and submitted that the protest petition has been rightly rejected after acceptance of the Final Report because the documents in question is in possession of the Civil Court and as such, it was the Civil Court alone who was competent to initiate the criminal proceedings. In support of their submissions, the learned Counsels have relied upon the case of Surjit Singh and Ors. v. Balbir Singh : 1996CriLJ2304 .

7. I have given my thoughtful consideration to the rival submissions made by the parties and also carefully considered the facts and circumstances of the case as well as the law on the point since the year 1931.

Before proceeding further, it would be relevant to mention here the provisions of law with which we are concerned, i.e. Section 195(1), Cr.P.C., which reads as under:

Section 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence : (1) No Court shall take cognizance:

(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 475, 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) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (i) or Sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

8. In view of the aforesaid provisions of Section 195, Cr.P.C., the question which is to be considered is whether the bar provided therein for initiation of the criminal proceedings is applicable when the alleged forged document has been created prior to its presentation before the Civil Court or not.

In other words, the whole controversy revolves round the interpretation of the Code, 'when such offence alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court.' Clause (b)(ii) of Sub-section (1) of Section 195, Cr.P.C. is the provision with which we are concerned.

9. The question of interpretation of a provision of similar nature, had initially come up for consideration before a Full Bench of the Allahabad High Court in the year 1931, in the case of Emperor v. Raja Kaushal reported in : AIR1931All443 . It was held that an offence is committed by a party to a proceeding in any Court in respect of a document which has been produced or given in evidence in such proceeding. In other words, a party to the proceeding should have committed forgery, after it has been filed before the Court concerned.

10. Subsequently, a Larger Bench of the Apex Court in the case of Patel Laljibhai Somabhai v. The State of Gujarat : 1971CriLJ1437 , had approved the view taken by the Allahabad High Court in the case of Emperor v. Raja Kushal : AIR1931All443 (supra) and held as under in Para 7:

The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the Court's control because of their direct impact on the Judicial process. It is the Judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the Court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the, Court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190, Cr.P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the Court alone; to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that Court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party. It may be recalled that the superior Court is equally competent under Section 476A, Cr.P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appeal conferred by Section 476B on a person on whose application the, Court has refused to make a complaint under Section 476 or Section 476A or against whom such a complaint has been made. The appellate Court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be, itself to, make the complaint. All these sections read together indicate that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c). Cr.P.C. to the offences mentioned, therein when committed by a party to a proceeding in that Court prior to his becoming such party.

The Hon'ble Supreme Court had, therefore, clearly rejected the construction being placed on the provision by which a document forged before the commencement of the proceeding in which it may happen to be used in evidence later on, to come within the purview of Section 195, Cr.P.C. as that would unreasonably restrict the right to initiate prosecution by a person and recognized by Section 190. Cr.P.C.,

11. In a later case of Raghunath and Ors. v. State of U.P. and Ors. : AIR1973SC1100 , the aforesaid decisions were considered and the Hon'ble Supreme Court had held- that the private complaint was maintainable.

In a case decided by the Apex Court from the High Court of Rajasthan i.e. Mohan Lal and Ors. v. The State of Rajasthan and Anr. : 1974CriLJ350 , the aforesaid decisions of the Apex Court, in respect of Section 195(1)(c), Cr.P.C. old Code, were again taken into consideration and it was held that the provision under Section 195, Cr.P.C. would not be applicable where mutation proceeding were commenced after the will had been forged.

12. Similarly, in the case of Legal Remembrancer of Govt. of West Bengal v. Haridas Mundra : 1976CriLJ1732 , a Larger Bench of the Apex Court observed that earlier there were divergence of opinion of various High Court but the same was set at rest in the case of Patel Laljibhai Somabhai : 1971CriLJ1437 (supra) and approved the view taken that the words of Section 195(1)(c) clearly meant that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceedings. Section 195(1)(c) indicate that the legislature could not have intended to extend the prohibition contained in the said provision to the offences mentioned therein when committed by a party to a proceeding prior to his becoming such party.

In the case of Mahadev Bapuji Mahajan and Anr. v. State of Maharashtra : 1994CriLJ1389 , the argument raised, that it was a revenue court which alone could have initiated the criminal proceedings in respect of the document forged, was not accepted. The said contention was rejected because the forgery was committed even before the starting of the proceedings before the Revenue Court.

13. The Hon'ble Supreme Court, in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. : 2005CriLJ2161 , a decision given by a Constitutional Bench, had considered the apparent conflicting opinion between the two decisions rendered by the Hon'ble three Judges of the Apex Court, in the cases of Surjit Singh v. Balbir Singh : 1996CriLJ2304 (supra) and Sachida Nand Singh : 1998CriLJ1565 (supra) regarding interpretation of Section 195(1)(b)(ii) of Cr.P.C., 1973. After considering the provision of the old Criminal Procedure Code as well as the present one and all the relevant cases in respect of intepretation of Section 195, Cr. P.C., the Hon'ble Supreme Court had observed as under:

10. The scheme of the statutory provision may now be examined. Broadly, Section 195, Cr.P.C. deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188, I.P.C. which occur in Chapter X of the I.P.C. and the heading of the Chapter is - 'Of Contempts Of The Lawful Authority Of Public Servants'. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI of I. P. C. which is headed as - 'Of False Evidence and Offences Against Public Justice'. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct co-relation with the proceedings in a Court of justice (Sections 205 and 211, I.P.C). This being the scheme of two provisions or clauses of Section 195, viz., that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a Court of Justice, the expression 'when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court' occur -ring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195, Cr.P.C. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court.

11. Section 195(1) mandates a complaint in writing of the Court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341, Cr. P.C. which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is - 'Provisions As To Offences Affecting The Administration Of Justice'. Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the Section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the Sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the Sections which follow them than might be afforded by a mere preamble. (See Craies on Statute Law, 7th Ed., Pages 207, 209). The fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence of Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice.

23. In view of the language used in Section 340, Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words 'Court is of opinion that it is expedient in the interest of justice.' This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of Justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned Counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.

24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340, Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii).

25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue Court, either by himself or through somone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of society at large.

14. The Hon'ble Supreme Court further held that the bar under Section 195(1)(b)(ii), Cr.P.C. would be attracted only when the offences enumerated in the said provisions have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. The Hon'ble Supreme Court had observed in para 33 in the case of Iqbal Singh 2005 Cri LJ 2161 (supra) as under:

33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii), Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.

15. Again, in the case of K. Vengadachalam v. K.C. Palanisamy and Ors. (2005) 7 SCC 352, the Hon'ble Supreme Court had held as under:

3. By the impugned order, the High Court of Madras quashed the prosecution of the respondents, which was launched under Sections 467, 468, 471 and 477-A read with Section 34 of the Penal Code (for short 'IPC') on the ground that the complaint was barred under Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C'). Undisputedly, the forgery is said to have been committed before the document was filed. Earlier, there was diverse opinion of this Court as to whether protection of Section 195(1)(b)(ii), Cr.P.C. was available in relation to forgery committed prior to the filing of document or after its filing. A Constitution Bench decision of this Court in the case of Iqbal Singh Marwah v. Meenakashi Marwah : 2005CriLJ2161 has categorically laid down in para 33 of the judgment that protection engrafted under Section 195(1)(b)(ii), Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it had been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. This being the position, in our view, the High Court was not justified in quashing prosecution of the respondents on the ground that provisions of Section 195(1)(b)(ii), Cr.P.C. were applicable.

4. Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the respondents submitted that the respondents are entitled to claim protection under Section 195(1)(a), Cr.P.C., which enumerates the offences punishable under Section 172 to 188, I.P.C. It has been pointed out that according to the petition of complainant, the accused persons had falsely filed a complaint before the Deputy Registrar, Chits, who dismissed the matter finally. The said complaint was not dismissed by the Deputy Registrar on merits, but without any adjudication, inasmuch as there was no finding that the complainant had lodged a false complaint before the Deputy Registrar. The present complaint does not relate to falsity or otherwise of the complaint before the Deputy Registrar: rather according to the prosecution case, the accused persons are said to have forged the document. This being the position, in our view, the provisions of Section 195(1)(a), Cr.P.C., shall have no application to the case in hand. For the foregoing reasons, we are of the view that the High Court was not justified in quashing prosecution of the respondents.

16. For the aforesaid reasons and the authoritative pronouncement of the Hon'ble Supreme Court in the case of Iqbal Singh Marwah 2005 Cri LJ 2161 (supra), I am of the considered opinion that both the Courts below have committed illegality, by wrongly interpreting the provisions of Section 195, Cr.P.C., in holding that in the instant case, where a document was undisputedly not created or forged during the pendency of the same in the Civil Court, the proceedings could not have been initiated by the petitioners-complainants but it was only the Civil Court who should have proceeded with. Therefore, the impugned orders passed by the learned Magistrate as well as the revisional Court is contrary to to law and deserve to be set aside.

17. Consequently, this Criminal Misc. Petition is allowed and the impugned orders dated 14-12-1989 passed by the Additional Chief Judicial Magistrate, No. 1, Alwar and the Additional Sessions Judge. No. 2, Alwar on 2-7-1998 are quashed and set aside.


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