Akko Devi vs State of Punjab

M.L. Singhal, J.

This is Criminal Revision No. 367 of 1998 whereby Smt. Akko Devi and Rattan Singhpetitioners herein have prayed for the setting side of the order dated 24.12.1997 passed by Judicial Magistrate Ist Class, Fategarh Sahib whereby learned Magistrate refused to take cognizance of case FIR No. 65 dated 16.11.1995 registered under Sections 420, 465, 468, 471, 419, 193 of the Indian Penal Code against Kulwinder Singh and others because of the bar created by Section 195 of the Code of Criminal Procedure to the taking of cognizance of the offences without the complaint by the Court before whom the said offences had been committed against them (Kulwinder Singh and others).

This revision has arisen in the following circumstances :

Ram Singh and Basta Singh filed civil suit in the Court of Shri G.S. Jhaj, Sub Judge Ist Class, Fategarh Sahib against Smt. Akko Devi and Rattan Singh. They obtained decree dated 2.4.1984 against them by fraud and by producing some other persons in their place. When they (Akko Devi and Rattan Singh) came to know of that decree having been obtained by Ram Singh and Basta Singh through fraud and impersonation, they filed suit challenging that decree saying that they had never been served in that suit and they never appeared before the Court and they never suffered any statement in Court and the decree had been obtained through fraud and impersonation. Jaswinder Singh, Kulwinder Singh, Paramjit Singh, Amar Kaur, Kuldip Kaur and Sarabjit Kaur were impleaded in the suit being the legal representatives/heirs of Ram Singh. In that suit filed by Akko Devi and Rattan Singh challenging that decree, accused produced false death certificate in respect of Akko Devi in evidence and also gave false statement that the whereabouts of Rattan Singh were not known since the year 1984. This evidence produced by the accused was not believed by the Court and the suit of Akko Devi and Rattan Singh was decreed. Subordinate Judge gave specific finding that all the accused who were interested in the obtaining of the decree had falsely deposed regarding the death of Akko Devi and the missing of Rattan Singh. Death certificate produced by the accused was also held to be a false document. Accused preferred appeal against the decree, wherethrough, the previous decree was set aside but the appeal was dismissed.

Smt. Akko Devi filed complaint to the Senior Superintendent of Police, Fategarh Sahib under Sections 420, 465, 468, 419 and 471 of the Indian Penal Code against Kulwinder Singh etc. legal representatives of Ram Singh and one Harnek Sigh Lambardar and one Jaswant Singh. Complaint was enquired into and the case was registered. Learned Judicial Magistrate Ist Class, Fatehgarh Sahib discharged the accused vide order dated 24.12.1997 in view of the bar created by Section 195 of the Code of Criminal Procedure to the taking of cognizance of this complaint on the initiation of a private party.

I have heard the learned Counsel for the petitioners and learned AAG Punjab for the respondentState.

Learned counsel for the petitioners submitted that the bar of section 195 of the Code of Criminal Procedure will not come in the way of the Magistrate taking cognizance of the offences said to have been committed by the accused, on the complaint of Smt. Akko Devi. Section 195 of the Code of Criminal Procedure reads as follows :

"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, or 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 sections 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 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 proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or subclause (ii),

except on the complaint in writing of that Court, or of some other Court to which that court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint :

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of subsection (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of subsection (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction civil Court is situate :

Provided that

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

It was submitted that death certificate may have been forged outside the Court but after it was produced in Court, in evidence knowing fully well that the same was forged, the Magistrate could take cognizance of offences even though the complaint was not by the Court but by the private complainant (in this case by Smt. Akko Devi injured/aggrieved). In support of this submission, learned Counsel drew my attention to Sachida Nand Singh and another v. State of Bihar, 1998(1) RCR(Crl.) 823 : JT 1998(1) SC 370 , where it was held that where forgery was committed before the document was produced in Court, the bar contained in section 195(1)(b)(ii) of the Code of Criminal Procedure did not apply to a case of forgery committed before the production of document in Court. The offences envisaged in Section 195(1)(b) of the Code must involve acts affecting the administration of justice. Provision curbing the general jurisdiction of Court must receive strict interpretation unless the statute or the context requires otherwise. It was held that there is no dispute that if forgery has been committed while the document was in the custody of a Court, then prosecution can be launched only on a complaint made by that Court. There is also no dispute that if forgery was committed with a document which has not been produced in Court then the prosecution would lie at the instance of any person. If so, will its production in a Court make all the difference ? It is difficult to interpret Section 195(1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a Court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue unsavoury consequences.

Facts of the case of Sachida Nand and another v. State of Bihar and another (supra) were that a complaint was filed by second respondent (Lal Narain Singh) in the court of a Chief Judicial Magistrate alleging offences, inter alia, under Sections 468, 469 and 471 of the Indian Penal Code on the facts that appellants had forged a document (certified copy of JamabandiRent Roll) and produced it in a Court of the Executive Magistrate which was then dealing with proceedings under Section 145 of the Code. Chief Judicial Magistrate forwarded the complaint to the police as provided in Section 156(3) of the Code. Police registered an FIR on the basis of the said complaint and after investigation laid a chargesheet against appellants for those offences. The Chief Judicial Magistrate took cognizance of those offences and issued process to the accused. Appellants then moved Patna High Court under Section 482 of the Code for quashing the prosecution on the main ground that the Magistrate could not have taken cognizance of the said offences in view of the bar contained in Section 195(1)(b)(ii) of the Code.

On these facts the Hon''ble Supreme Court found that the bar created by Section 195(1)(b)(ii) of the Code is not attracted and the Magistrate could take cognizance of the offences without being deterred by the provisions of Section 195(1)(b)(ii) of the Code on the complaint of private party namely Lal Narain Singh.

In this case also, the grievance of Akko Devi and Rattan Singh was that they had never appeared in the suit and some other persons were put in their place, and when they challenged that decree Basta Singh and Ram Singh took up the plea that Akko Devi was dead and Rattan Singh''s whereabouts were not known since the year 1984 and the false and forged death certificate was produced and it was alleged falsely that the whereabouts of Rattan Singh were not known. According to Akko Devi thus the death certificate was forged outside the Court and produced in Court.

In my opinion the bar created by Section 195(1)(b)(ii) of the Criminal Procedure Code was not attracted and therefore the Court which passed the decree setting aside the socalled consent decree was not required to file complaint and the complaint was competent by Smt. Akko Devi. So, the impugned order passed by the learned Magistrate, Fatehgarh Sahib dated 24.12.1997 cannot be sustained and is set aside and the learned Magistrate is directed to take cognizance of the offences without being deterred by the provisions of Section 195(1)(b)(ii) of the Code of Criminal Procedure.

Revision allowed.