Skip to content


Dina Nath Vs. Hansraj and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1974CriLJ198
AppellantDina Nath
RespondentHansraj and anr.
Cases ReferredHar Prasad v. Hans Ram
Excerpt:
- .....the decree-sheet had been forged much before the making of the execution application this was an offence committed otherwise than in the course of judicial proceedings and therefore the complainant was competent to maintain a complaint against the respondents.10. i am of the opinion that the argument is not well founded and cannot prevail. the following words of the section provide a complete answer to the argument of mr. r. p. bakhshi : --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 proceedings.11. the aforesaid expression occurring in the said section would show that it is not necessary that the offence, should have been committed after the production of the document before the court. what the.....
Judgment:
ORDER

D.D. Thakur, J.

1. Whether or not the provisions of Section 195(1)(c) of the Code of Criminal Procedure are attracted in application so as to bar a prosecution on behalf of a complainant other than a court is the short but ticklish and simple but a debatable question which calls for determination in this revision application. The circumstances under which the question has arisen and the background to which the question is referable can be appreciated from the contents of the paras which follow:

The petitioner was the defendant and the respondent the plaintiff in a suit for recovery of money in the Court of Subordinate Judge at Reasi. The suit culminated in a decree in favour of the plaintiffs against the defendant with costs, the date of decree being 16-10-1968.

2. To enable them to take out execution of the decree the decree-holders applied for a copy of the decree-sheet from the Court of the Sub-Judge, Reasi. The decree-sheet mentioned the amount of costs as Rs. 90/-. The copy of the decree-sheet obtained by the decree-holders, it was alleged by the petitioner in this revision application, was forged by the respondents-decree-holders by making insertions in it raising the amount of cost by another sum of Rs. 50/-, as the cost incurred by the plaintiff-decree-holders in the Court of Sub-Judge at Udhampur. It was further alleged that after committing the aforesaid forgery the respondent-decree-holders filed an application for execution of the said decree on 15-11-1968 in the court of C. J, M., Udhampur, after obtaining requisite certificates regarding the non-satisfaction of the decree in the court of Subordinate Judge at Reasi, the court which passed the decree. The application for execution remained pending in the court of Subordinate Judge at Udhampur upto 12-12-1968 when the judgment-debtors, the present petitioner deposited the decretal amount.

The present complaint was filed in the court of C. J. M. Udhampur on 19-12-1968 by the petitioner who was the judgment-debtor in the execution proceedings against the respondent, the decree-holders in the execution proceedings, under Section 466 of the Penal Code alleging that the respondents had committed forgery by making interpolations and insertions in the copy of the decree-sheet obtained by them from the court of Subordinate Judge at Reasi and that in the execution application this inflated sum of costs was sought to be recovered on the basis of the aforesaid forged copy of the decree-sheet. The process having been issued in the aforesaid complaint against the respondent by the C. J. M., Udhampur (sic). The accused appeared on 20-11-1969, later the case was transferred by the C. J. M., Udhampur to the Court of Sub-Judge, Judicial Magistrate, Reasi, on an application made by Badri Nath, one of the accused, with the consent of the parties.

3. The Sub-Judge, Judicial Magistrate, Reasi; thereafter proceeded with the enquiry. Evidence having been recorded the complaint reached the stage of charge. It was at this stage that the accused respondents raised a plea in bar of the prosecution on the ground that Section 195(1)(c) of the Code of Criminal Procedure was attracted in application and that the court could not take cognizance of the complaint, the . same not having been made by the court before whom the proceedings in the course of which the offence was committed were pending.

4. The trial court of Sub-Judge, Judicial Magistrate, Reasi, after having heard the parties on this question, allowed the plea to prevail and dismissed the complaint holding that the same could not be taken cognizance of Section 195(1)(c) of the Code of Criminal Procedure being the bar. The petitioner before this Court approached the Sessions Judge, Udhampur, in revision who refused to interfere with the order passed by the trial Magistrate and dismissed the revision application. The present revision is directed against the order of the learned Sessions Judge, Udhampur, passed in revision.

5. For the reasons which I assign hereafter I feel that the courts below have rightly arrived at the conclusion that Section 195(1)(c) constitutes a bar to the complaint filed by the petitioner being taken cognizance of.

6. Section 195(1)(c) reads as under:

No court shall take cognizance of:

(a) ...

(b)...

(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.

7. The aforesaid provision plainly interpreted, would require the following conditions precedent for its application:

(1) The offence must be alleged to have been committed by a party to any proceeding in any court;

(2) That the offence must have been committed in respect of a document produced or given in evidence in such proceedings; and

(3) That the offence must be- one described under Section 463 of the Penal Code or other Sections mentioned in the sub-section itself.

8. There is no dispute that Section 463 of the Penal Code describes forgery as making of a false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

9. Offence under Section 466, R. P. C. is only an aggravated form of forgery in relation inter alia to the records or proceedings of a court of justice. If the remaining conditions contemplated by Section 195(1)(c) enumerated above apply admittedly an offence under Section 466 would fall within the ambit of the said provision and a prosecution would be barred at the instance of a private individual. In so far as the second requirement namely that such offence must be alleged to have been committed by a party to any proceeding in any court is concerned, it cannot be said that the respondents were not a party to the execution proceedings based on a forged copy of the decree-sheet. The second requirement for the application of the said provision barring the prosecution at the instance of a private individual cannot also thus be said to be absent. Counsel for the parties agree that if the decision regarding the existence or non-existence of the 2nd requirement goes against the complainant-petitioner the bar contained under Section 195(1)(c) must strictly apply.

Mr. R.P. Bakhshi, appearing on behalf of the petitioner, submitted that Section 195(1)(c) does not apply as in the circumstances of this case the perpetration of forgery by the respondents had preceded the commencement of the execution proceedings and therefore the offence of forgery was not committed in the course of the proceedings before the court. According to him, Section 195(1)(c) would apply only in cases in which the commission of offences mentioned in clause (c) of Sub-section (1) of Section 195, takes place in the course of proceedings before the Court. He has further submitted that if the copy of the decree-sheet had been forged much before the making of the execution application this was an offence committed otherwise than in the course of judicial proceedings and therefore the complainant was competent to maintain a complaint against the respondents.

10. I am of the opinion that the argument is not well founded and cannot prevail. The following words of the Section provide a complete answer to the argument of Mr. R. P. Bakhshi : --

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 proceedings.

11. The aforesaid expression occurring in the said Section would show that it is not necessary that the offence, should have been committed after the production of the document before the Court. What the Section contemplates is the commission of an offence in respect of a document produced or given in evidence in such proceedings. It does not lay down that the offence must have been committed after the production of the document or after the document was tendered in evidence. It was, therefore, sufficient for the application of the said Section to establish that a document in respect of which forgery was committed was produced in the course of proceedings before the Court.

12. Mr. Bakshi relied upon a judgment reported as : AIR1969Guj195 . His Lordship, Mr. Justice N. G. Shelat in that case observed as under:

Clause (c) of Section 195(1) is confined only to those cases where the offences mentioned in the clause are committed in respect of documents after they are so produced or given in evidence. In other words, the offence in respect of that document already produced in the Court must have been committed while it remained in custody of the Court. It does not refer to any offence already committed in respect of that document outside and later on produced in Court in a proceeding between the same parties.

13. With respect I do not find myself in agreement with the interpretation of the learned Judge given to Section 195(1)(c). I feel that there is nothing in the clause (1)(c) of Section 195 which would suggest that its application would be attracted only if it is alleged that the offence was committed in the course of the proceedings. All that this Section lays down is that if a forged document is produced or given in evidence by a party to any proceeding in any Court the bar laid down in that Section is attracted and for that purpose it is immaterial whether the forgery was committed prior or subsequent to the initiation of the said proceedings.

14. In a large number of cases the Court trying a complaint of forgery may hold that the forgery has been committed but it may not be. possible for it to locate the exact stage at which the forgery was committed. In every complaint, therefore, which falls under Section 195(1)(c) the Criminal Court may not be able to decide whether the complaint at the instance of a private individual would be cognizable by it or not. It may be possible for the Court to give a finding only at the final stage and if the Court finds that the forgery had taken place before the production of the document or before the tendering of the document in evidence it may be left with no option but to dismiss the complaint on the ground that bar contained in Section 195(1)(c) was attracted. An intention therefore, which could lead to such results could not at all have been intended by the Legislature while enacting Section 195(1)(c).

The principle behind the provision aforesaid appears to be that so long as the Court before whom the document in respect of which the forgery is alleged to have been committed does not give its own finding in regard to the allegation of forgery it should not be made possible for another Court to entertain a complaint at the instance of a private individual regardless or irrespective of the impressions which the Court before whom the document was produced had formed in regard to the allegation. It really intends to obviate the possibility of two conflicting findings being recorded by two Courts one before which the document was produced in the course of the proceedings and the other trying the complaint of forgery. If this was the object there would be no reasonable and rational distinction between a case where the commission of offence of forgery has taken place during the course of the proceedings and a case where the forgery has been committed before the commencement of the proceedings and the production of the document, because in either case the Court before which the document is produced shall have to be called upon to say something regarding the principal proceedings before it or at any subsequent stage where an application is made before it for initiating proceedings under Section 466 of the Code of Criminal Procedure. This aspect of the matter does not appear to have been considered by his Lordship Mr. Justice N. G. Shelat of the Gujarat High Court in the case referred to above.

15. Another authority cited by Mr. Bakshi in support of his contention is reported as : 1971CriLJ1266 . In this case the accused was charged with offences under Sections 167, 466 and 471 of the Penal Code and an order of commitment was passed by the Magistrate against him. The accused sought the quashing of the orders of commitment on various grounds before the High Court; one of them being that the provisions of Section 195(1)(c) barred such a prosecution. It appears that the High Court of Patna after a careful consideration came to the conclusion that the bar contained in Section 195 did not apply to an offence under Section 167 as the same was not mentioned in Section 195(1)(c). So far as the offence under Section 466 was concerned, it was admitted before the Supreme Court by the counsel for the parties that Section 466 of the Penal Code is not covered by clause (b) or clause (c) of Section 195 of the Code and that therefore that section did not operate as a bar in respect of that offence.

16. It is true that their Lordships of the Supreme Court on the basis of concessions made before them accepted the position that Section 466 of the Penal Code not haying been mentioned specifically in Section 195(1)(c) the bar contained would not apply but the concessions and the admissions made by the parties before their Lordships of the Supreme Court was based, it appears to my mind, on misapprehension of the words 'described in Section 463,' The offence described under Section 463 is the offence of forgery. This offence of forgery is punishable by Sections 465, 466, 467, 468 and 469 according to the degree of gravity of the offence. Simple forgery is punishable under Section 465 with imprisonment which may extend to one year or with fine or with both. Forgery in respect of record or proceeding of or in a Court of Justice, or a register of birth, etc. is punishable under Section 466 with imprisonment of either description which may extend to seven years. Forgery in respect of valuable security or a will, or an authority to adopt a son, etc. etc. is punishable under Section 467 with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years. Forgery for purpose of harming human reputation is punishable under Section 469. When Section 195(1)(c) refers to an offence the description of which is given in Section 463, it really refers to all the offences of simple forgery or forgery in an aggravated form which are made punishable by the aforesaid sections of the Penal Code. The fact that Section 466 of the Penal Code is not specifically mentioned in Section 195(1)(c) therefore would not make Section 466 of the Penal Code fall outside the ambit of the bar contained under Section 195(1)(c).

17. There is no dispute with the proposition that the law declared by their Lordships of the Supreme Court is the law binding on all the Courts in the country but the question is whether in such a case it can be said that the law has been declared by the Supreme Court. It is pertinent to note that in para. 15 of the judgment at page 1711 their Lordships of the Supreme Court dealt with the two offences namely 167 and 466 distinctly. In respect of Section 167 of the Penal Code their Lordships after considering the question, expressed complete agreement with the view taken by the High Court that Section 195(1)(b) or (c) is no bar to the Magistrate taking cognizance of an offence under Section 167, But so far as the offence under Section 466 is concerned their Lordships did not consider the question but only accepted the admissions made before them by the parties, that Section 466 of the Penal Code not covered by (1)(b) or (c) of Section 195.

18. In order to clearly appreciate and amplify the position para. 15 of the judgment of their Lordships of the Supreme Court in Govind Mehta v. The State of Bihar reported as : 1971CriLJ1266 is reproduced below:

The High Court after a careful analysis of the allegations made in the complaint and the material placed before it and after a very elaborate consideration of the matter has come to the conclusion that on the case of the prosecution the charge framed under Section 167 of the Penal Code, is justified. The High Court has considered the ingredients of the offence under Sections 192 and 193 as well as Section 167 of the Penal Code. As the charge has been framed under Section 167, the bar under Section 195(1)(b) or (c) of the Code has no application. We agree with the view of the High Court that Section' 195(1)(b) or (c) is no bar to the Magistrate taking cognisance for an offence under Section 167. The offence under Section 466 of the Penal Code is, admittedly, not covered by clause (b) or clause (c) of Section 195(1) of the Code. Therefore, that section does not operate as a bar in respect of this offence.

19. Under these circumstances, therefore the judgment of their Lordships of the Supreme Court does not apply to the facts of the present case. So far as the binding effect of their Lordships judgment of the Supreme Court is concerned a reference may with advantage be made to the case. State of West Bengal v. Corporation of Calcutta reported as : 1967CriLJ950 . Dealing with the question as to whether a judgment on the basis of a concession amount to laying down the law by the Privy Council, K. Subba Rao, C. J. speaking for the majority observed at page 1004 as follows:

The decision made on a concession made by the parties even though the principle conceded was accepted by the Privy Council without discussion, cannot be given the same value as one given upon a careful consideration of the pros and cons of the question raised. Further, no argument was raised before the Privy Council that the Common Law of England had legal force only in the said three Presidency towns and not in the rest of the country, for that case happened to be one that arose in the City of Bombay. The observations of the Privy Council that the principles obtaining in England also governed the Crown in India are rather wide. Nor any argument was raised before the Privy Council making a distinction between substantive branches of Common Law and mere rules of construction. It is not possible to predicate what the Privy Council would have said if that distinction had been placed before it. Be that as it may, this decision cannot be taken as finally deciding the question that is raised before us.

20. The aforesaid observations of the Supreme Court do not leave any doubt in my mind that the declaration spoken about in Article 141 of the Constitution of India is the declaration which the Hon'ble Supreme Court makes after consideration of the question and not by accepting the position on the basis of concession.

21. Mr. Bakshi then relied upon a Division Bench Judgment of the Calcutta, High Court reported as AIR 1930 Cal 278 : 31 Cri LJ 1205. The view taken by the Calcutta High Court in the aforesaid judgment also is consistent with the observations of his Lordship Mr. Justice N. G. Shelat, reported as : AIR1969Guj195 with which I have ventured to differ for the reasons already given.

22. I borrow support for my view from a judgment of the Allahabad High Court in Jia Lal v. State of U.P. reported as : AIR1967All420 . In. this case the accused was charged with offences under Sections 120B, 193, 196, 467, 471, 420 and 511 read with Section 109, I. P. C. Even when Section 467 does not find mention in Clause (c) of Sub-section (1) of Section 195 it was held that a complaint instituted by the Court after taking proceedings under Section 476 of the Criminal Procedure Code was legally valid and maintainable. Dealing with the question in para. 9 of the judgment the Court observed as follows:

In order to arrive at the proper conclusion it is necessary to consider certain Sections of the Indian Penal Code and the Code of Criminal Procedure. Section 195(1)(b), Criminal P. C. provides that no Court shall take cognizance of any offence punishable under 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 proceeding in any Court, except on the complaint in writing of such Court. Sub-section (1)(c) of Section 195 further provides that a Court shall not take cognizance of any offence described in Section 463 or punishable under Sections 471, 475 and 476, I. P. C. (i. e. offences relating to production of forged document in evidence) except on complaint in writing of such Court. It is noteworthy that Section 195(1)(b), Criminal P. C. contemplates the commission of enumerated offences both 'in, or in relation to any proceeding in any Court', In the instant case the ijazatnamas Exhibits Kha-1 and 2 had been actually filed and proved by. the evidence of defence witnesses in the then legal proceeding pending in the Court of the Judicial Magistrate Jalesar and, therefore, the said Magistrate was competent to lodge a complaint against the seven opposite parties inter alia under Sections 193, 196 and 471, I. P. C. which clearly fall within the ambit of Section 195(1)(b) and (c). Criminal P. C.

23. This view is further reinforced from another judgment of the Allahabad High Court in Har Prasad v. Hans Ram reported as : AIR1966All124 . The Court while dealing with the question of applicability of Section 195(1)(c) of the Code of Criminal Procedure, in para. 11 of the judgment observed as under:

It will be noticed that the words used in this sub-section are 'in respect of a document produced or given in evidence in such proceeding....' which indicate that the intention of the legislature was not to circumscribe the offences described in it only when they are committed when the proceedings are pending in Court but also to include them within the ambit of the Section, even if they had been committed anterior to it and the fruit of that offence has been relied upon in those proceedings. In other words, the words 'in respect of' are wide enough to include even a document which was prepared before the proceedings started in a Court of law but was produced or given in evidence in that proceeding. In this view of the matter, I am of opinion that although the document in question was fabricated before the proceedings started in Court and although two of the opposite parties were not impleaded in the mutation proceeding before the Tahsildar, it must be held that the cognizance of the offence was barred by Section 195(1)(c) of the Code.

24. Further support in this view is available from yet another judgment of the Allahabad High Court reported as : AIR1969All189 . Dealing with the similar question in para. 6 of the judgment the Court held:

On behalf of the State it was, however, contended that as the offence of forgery as described in Section 463, I. P. C. was committed prior to the applicant becoming a party to the aforesaid proceeding in the Court of the Compensation Officer, Section 195(1)(c) had no application to this case. I do not agree, for the simple reason that there is nothing in this section to warrant such an interpretation. All that that section lays down is that if a forged document is produced or given in evidence by a party to any proceeding in any Court the bar laid down in that section is attracted and for that purpose it is immaterial whether the forgery was committed prior or subsequent to the initiation of the said proceeding. Thus on the plain terms of the section I am satisfied that the first contention of the applicant's learned Counsel is correct.

25. On a consideration of the provisions of the section and the views expressed by various High Courts I am of the opinion that it is not necessary that the forgery should have been committed during the pendency of the proceedings before the Court, for the application of the bar contained in Section 195(1)(c) of the Code. I am of the opinion that the offence described in Section 463 is the offence of forgery and as such regardless of the particular section under which it is made punishable it falls within the ambit of Section 195(1)(c) and a com-plaint even for an offence punishable under Section 466 is also barred at the instance of a private individual if the offence has been committed in respect of a document tendered by a party to the proceedings before the Court. The complaint filed by the petitioner in this case could not be therefore taken cognizance of by the Court. The only option available to the petitioner was to move the Court of C. J. M. Udhampur for initiating proceedings under Section 476 and for ultimately instituting a complaint for an offence under Section 466.

26. Mr. Bakshi submitted that in case this Court upholds the orders of the courts below the complaint may be treated as a petition for moving the Court to initiate the proceedings against the respondent. I think that would not be a proper order because a petition under Section 476 for making a motion to institute a complaint is expected to contain facts different from those contained in the complaint. A refusal of the prayer will not entail any hardship to the petitioner but the acceptance thereof will unnecessarily result in a confusion both for the petitioner and for the Court by whom the proceedings are to be initiated. It is open to the petitioner to make a petition in a proper forum for initiating proceedings against the respondents and if the Court after a careful consideration of the facts and circumstances of the case decides to institute a complaint it can do so.

27. For the foregoing reasons this revision application is dismissed and the rule is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //