Anil Kumar and Another vs State of U.P. and Another

Narayan Shukla, J.—Heard Mr. C.L. Yadav, learned Counsel for the petitioners as well as learned Additional Government Advocate and Mr. Vimal Mishra, learned Counsel for opposite party No. 2.

The petitioners have challenged the order dated 21.5.2008 passed by the Chief Judicial Magistrate in complaint case No. 254 of 2008 whereby complainant''s complaint has been accepted and the petitioners have been summoned for trial u/s 420 468 471 I.P.C. merely on the ground that against the petitioners, an application u/s 340 Cr.P.C. has been filed before Sub-Divisional Magistrate, Faizabad whereby the allegations of fraud allegedly to have been committed by the petitioner have been made. The petitioners have filed objection. After hearing the parties, learned Sub-Divisional Magistrate rejected the application u/s 340 Cr.P.C. vide order dated 12.7.2007. Being aggrieved with which, appeal bearing No. 39 of 2007 u/s 341 Cr.P.C. has been preferred before the District and Sessions Judge, Faizabad, who remanded the case to the Sub-Divisional Magistrate by means of an order dated 11.3.2008 where the same is still pending. It has further been submitted by learned Counsel for the petitioners that the petitioners moved an application for recall of the order before the Judicial magistrate on the ground that for the same cause of action, proceeding u/s 340 Cr.P.C. is pending against the petitioners before the Sub-Divisional Magistrate, Faizabad. However by concealing this fact, the opposite party No. 2 has filed the complaint, which has been rejected by learned Magistrate by means of an order dated 13.8.2008.

In view of the aforesaid facts, he submitted that no person can be prosecuted twice for one offence as for the same offence two proceedings are going on against the petitioners one u/s 340 Cr.P.C. before the Sub-Divisional Magistrate, Faizabad and another complaint before the Chief Judicial Magistrate, who has taken cognizance of offence u/s 190(1) Cr.P.C. It is a case of filing a false and forged affidavit and bond before the court as upon the statement of complainants as well as the witnesses produced by him the Magistrate concerned has found that prima facie an offence is made out against the petitioner.

Learned Counsel for the petitioners submits that once the cognizance has been taken against the offence allegedly to have been committed by the petitioner u/s 340 Cr.P.C. of the court of competent jurisdiction, there is no occasion to entertain the complaint for the same cause of action. In support of his contentions, he cited a decision of the Hon''ble Supreme Court rendered in the case of M.S. Ahlawat Vs. State of Haryana and Another, The relevant paragraphs of which are reproduced hereinunder:

Chapter XI of IPC deals with false evidence and offences against public justice and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (Cr.P.C.) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence u/s 193, IPC etc. or to an offence relating to documents actually used in a Court, private prosecutions are barred absolutely and only the Court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 Cr.P.C. are mandatory and no Court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that Section. It is settled law that every incorrect or false statement does not make it incumbent upon the Court to order prosecution, but to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice.

Section 340 Cr.P.C. prescribes the procedure as to how a complaint may be preferred u/s 195 Cr.P.C. While u/s 195 Cr.P.C., it is open to the Court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 Cr.P.C. prescribed the procedure as to how that complaint may be preferred. Provisions u/s 195 Cr.P.C. are mandatory and no Court can take cognizance of offences referred to therein. It is in respect of such offences the Court has jurisdiction to proceed u/s 340 Cr.P.C. and a complaint outside the provisions of Section 340, Cr.P.C. cannot be filed by any civil, revenue or criminal Court under its inherent jurisdiction.

This Court in Chajoo Ram Vs. Radhey Shyam and Another, stated that where the offence relates to a Court u/s 195, Cr.P.C. sanction of the Court should be obtained first'' and such sanction should be granted only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely and to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very end. It is made clear that there is no inherent power to make a complaint apart from the provisions of Section 195 Cr.P.C.

On the other hand, learned Additional Government Advocate cited a decision rendered in the case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, In this case, the appellant No. 1 filed probate case in the court of District Judge, Delhi, for being granted probate of the Will allegedly executed by Mukhtar Singh Marwah on 20.1.1993. The petition was contested by the respondents on the ground that the Will was forged. Thereafter, the respondents moved an application u/s 340 Cr.P.C. requesting the court to file a criminal complaint against Appellant 1 as the Will set up by him was forged. A reply to the said application was filed but the application was not disposed of so far. Thereafter, the respondents filed a criminal complaint in the court of Chief Metropolitan Magistrate, New Delhi, for prosecution of the appellants and their mother Smt. Trilochan Kaur Marwah under different sections of I.P.C. on the ground that the Will of Mukhtar Singh Marwah set up by the appellants is a forged and fictitious document. The learned Metropolitan Magistrate held that as the question whether the Will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the Will had been filed, Sections 195(1)(b) (i) and (ii) Cr.P.C. operated as a bar for taking cognizance of the offences. The complaint was dismissed. The respondents thereafter filed criminal revision before the Sessions Judge, who relying upon Sachida Nand Singh v. State of Bihar 1998(2) SCC 493 held that the bar contained in Section 195(1)(b)(ii) Cr.P.C. would not apply where forgery of a document was committed before the said document was produced in court. The revision petition was accordingly allowed and the matter was remanded to the Court of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Additional Sessions Judge by filing a petition u/s 482 Cr.P.C. before Delhi High Court but the same was dismissed following the law laid down in Sachida Nand Singh (supra). Thereafter, the appellants preferred the appeal before the Hon''ble Supreme Court.

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 any court" occurring in Clause (b)(ii) of Sub-section (1) of Section 195 Cr.P.C. attracted the attention of the Hon''ble Supreme Court for its interpretation, which has been interpreted by the Hon''ble Supreme Court in following manner:

The relevant paragraphs of the judgment is reproduced hereinunder:

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(i)(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 remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.

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 u/s 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).

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 someone 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.

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.

In the present case, the will has been produced in the Court subsequently. It is nobody''s case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.

The relevant provisions of Section 195 Cr.P.C. as well as Section 340 Cr.P.C. are also reproduced hereinunder:

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 abatement 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 u/s 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 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.

Procedure in cases mentioned in Section 195:

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, -

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195.

(3) A complaint made under this Section shall be signed.

(a) where the Court making the compoaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section, "Court" has the same meaning as in Section 195.

Since in the said case forged Will was produced in the court subsequently, the Hon''ble Supreme Court held that the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents and accordingly, he dismissed the appeal.

Here in the present case also, obviously the affidavit and bond were prepared before production to the court concerned. Thus, it is fully covered under the teeth of the case of Sachida Nand Singh v. State of Bihar (supra). Therefore, I am of the view that in the present case also the provisions of Section 195(1)(b)(i) Cr.P.C. would not apply. Accordingly, I find that the learned Chief Judicial Magistrate has not committed any error in proceeding with the complaint. The case does not warrant interference by this Court.

The petition is dismissed.