Bhola Nath Ojha vs The State of Bihar and Shitla Nand Jha

I.P. Singh, J.—This is a petition u/s 482 of the Code of Criminal Procedure, 1973 (in short the ''Code''). It is directed against the order dated 24.7.1992 passed in Cr. Revision No. 30/92 by Shri S.K. Mishra, Sessions Judge, Madhepura, by which the order dated 23.8.1991 passed by Shri R. Kumar. Chief Judicial Magistrate, Madhepura in G.R. Case No. 112/90 (Gamharia P.S. Case No. 005/90 was confirmed.

The facts of this case lie in a narrow compass. Opposite party No. 2 Shitla Nand Jha, lodged Complaint Case No. 702(c) of 1989 against the Petitioner and one Basudeo Mushar before the Chief Judicial Magistrate, Madhepura on 16.11.1989. The learned Chief Judicial Magistrate sent the complaint petition to Gamhariya police station for registering a case and submission of final form. Accordingly, Gamhariya P.S. Case No. 5/90 dated 21.1.1990 was registered under Sections 465, 468 and 471 of the Indian Penal Code for an occurrence alleged to have taken place in the year 1928. As per this complaint case the Petitioner was said to be the Tahsildar of late Banshidhar Dhandhania of Bhagalpur and in this capacity he kept various rent receipts of the landlord with him out of which seven receipts from 1333 F.S. to 1346 F.S. were issued to Bachchu Mushar by the Petitioner. In the proceeding under Sections 144 and 145 of the Code (Misc. Case No. 354 of 1986) these receipts were produced before the learned Magistrate by Basudeo Mushar, son of Bachchu Mushar. This proceeding was, however, dropped by the Sub Divisional Officer on 6.9.1989 with an observation that parties were free to move competent court for redressal of their grievances.

The complaint petition was filed on the assumption that the rent receipts produced by Basudeo Mushar were not originals but on the other hand they were forged documents. The police after completing the investigation submitted the charge-sheet as mentioned above also against the Petitioner.

The Petitioner has contended that he is an old man of about 80 years of age and the alleged offence is said to have been committed more than 65 years ago. The proceeding under Sections 144 and 145 of the Code was itself dropped. Opposite party No. 2 had filed a complaint petition before the Chief Judicial Magistrate, Madhepura who wrongly sent it to the Police on the basis of which the charge sheet has been submitted and the learned Chief Judicial Magistrate took cognizance of the offence against the Petitioner and Basudeo Mushar and tras-ferred the case for disposal to the court of Shri R.N. Jha, Judicial Magistrate, 1st Class, Madhepura. The Petitioner on hearing some rumour about taking of cognizance obtained necessary information and filed Criminal Revision No. 30/92 before the learned Sessions Judge, Madhepura against the order dated 23.8.1991 passed by the Chief Judicial Magistrate. This revision petition was heard and disposed of by the learned Sessions Judge by his order dated 24.4.1992 by which he did not find any necessity to interfere in the matter at this stage, though he held that by mistake cognizance was also taken for the offence u/s 471 of the Indian Penal Code. However, he observed in paragraph 3 of his judgment that it was open to the Petitioner to point it out to the trial court at the time of framing of charge. So far as offences under Sections 465, 468 and 120B of the Indian Penal Code were concerned he did not find any necessity to interfere with the order of the learned Chief Judicial Magistrate taking cognizance of the offence.

In this case the Petitioner has further submitted that the learned court below without taking into consideration the tact that if any forged paper was produced before the Executive Magistrate then it was for the same court and not any private person to lodge a complaint after making necessary enquiry u/s 340 of the Code; and as such the complaint petition itself should have been dismissed. Instead of doing so the learned Chief Judicial Magistrate sent the case for investigation to the police and thereby adopted a procedure which is not at all authorised by law. The police could not have investigated and could not have submitted charge sheet in the matter inasmuch as the procedure as described in Sections 195 and 340 of the Code was not followed. As such the learned Chief Judicial Magistrate also could not have taken cognizance of the offences. Even the original rent receipt were not produced in the court in respect of which the alleged offence of forgery was said to have been committed. The case itself was lodged after the expiry of more than 65 years. It is well settled that in a case like this Magistrate could not have ordered that police to lodge a case u/s 156(3) of the Code and the cognizance itself was barred under the provision of Section 195 of the Code.

While disposing of the revision petition the learned Sessions Judge had accepted the fact that no cognizance could be taken u/s 471 of the Indian Penal Code except on a complaint by the court before which the proceeding under Sections 144 and 145 of the Code was pending.

On the aforesaid grounds it has been prayed that the order dated 23.8.1991 passed by the learned Chief Judicial Magistrate taking cognizance of the offence and also the order dated 24.4.1991 passed by the learned Sessions Judge, Madhepura in Cr. Revision No. 30/92 be quashed.

The only point for decision before me whether this application is fit to be allowed or not.

At the outset a very strong objection was taken before me on behalf of the opposite party that this criminal misc. case is not aintainable since it is hit by Section 397(3) of the Code. It has further been contended that though this application has been labelled to be an application u/s 482 of the Code but in fact this is petition u/s 397(1) of the Code and, therefore, the labelling of this application u/s 482 of the Code is of no consequence. On this ground alone it has been submitted that this application is fit to be dismissed. Since this question of law has been raised on behalf of the opposite party I feel it necessary to deal with it in detail.

Section 397 of the Code authorises the High Court or the Sessions Judge to call for and examine the record of any proceeding before any inferior criminal court for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Its Sub-section (3) runs as follows:

(3) If an application, under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be. entertained by the other of them.

My attention has been drawn to the bar as contained in Section 397(3) of the Code. It has been submitted that in.view of this provision of law this application though said to have been filed u/s 482 of the Code is not maintainable and is, therefore, liable to be dismissed.

In this conncetion my attention has been drawn to the case of Jagir Singh Vs. Ranbir Singh and Another, . In this case it appears that when a revision petition was filed before the Sessions Judge he refused to interfere with the order of the Magistrate. Thereafter the jurisdiction of the High Court was invoked to avoid the order of the Magistrate. It was held that the bar of Section 397(3) of the Code was effectively attracted since what was under challenge was the order of the Magistrate and not that of Sessions Judge. It was further held that this bar could not be circumvented by the subterfuge of treating the revision application as directed against the Sessions Judge''s order. The Hon''ble Supreme Court further proceeded to observe that the revision application before the High Court would not be treated as an application directed against the order of the Sessions Judge instead of as one directed against the order of the Magistrate. It was not permissible to do so. It was further observed that what may not be done directly cannot be allowed to be done indirectly; since that would be an evasion of the statute.

On the strength of this decision; on behalf of the opposite party; it has been submitted that this application itself is not maintainable even though it has not been filed u/s 397(1) of the Code. It has further been submitted that labelling of an application is, hardly of any consequence and in this connection my attention has been drawn to the case of Madhu Limaye Vs. The State of Maharashtra, . In that case the petition before the High Court was filed under Sections 397 and 401 of the Code. The Hon''ble Supreme Court held that in a situation like that the jurisdiction u/s 482 of the Code can also be attracted. So far as the aforesaid propositions of law are concerned there can hardly be any dispute.

In reply the learned Counsel for the Petitioner has also placed reliance on the case of Madhu Limaye (supra) in support of his contention that bar of Section 392(2) or for that matter of fact Section 397(3) can not be deemed to limit or affect the inherent power of the High Court u/s 482 of the Code. In the said case the point for consideration before the Hon''ble Supreme Court was whether the provision of Section 397(2) of the Code will bar the exercise of the power u/s 482 of the Code if the order under challenge happens to be interlocutory in nature. In the case of Madhu Limaye (supra) it has, however, been observed that a plain reading of Section 482 of the Code will show that nothing in this Code which include Section 397(2) of the Code also shall be deemed to limit or affect the inherent power of the High Court. Like wise the same will apply to a case u/s 397(3) of the Code since the Hon''ble Supreme Court has observed that nothing in the Code (which would also include 397(3) be deemed to limit or affect the inherent power of the High Court. It was urged before the Hon''ble Supreme Court that if the bar of Section 397(2) of the Code was not to operate in exercise of this power at all, it will be setting at naught the limitation imposed upon the exercise of the revisional powers. The Hon''ble Supreme Court, however, held that a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 will operate only in exercise of the revisional power of the High Court (High Court will have no revisional power in relation to an interlocutory order) or as in the present case in relation to an order passed u/s 397(1) of the Code in view of the bar contained in Section 397(3). The Hon''ble Supreme Court further proceeded to observe that since there was no provision in the Code for the redressal of the grievance of the aggrieved party, the inherent power would come into play.

In this connection a reference may also be made to the case of Raj Kapoor and Others Vs. State and Others, . In this decision the Hon''ble Supreme Court held that the inherent power of the High Court u/s 482 does not stand repelled when the revisional power u/s 397 overlaps. It was further held that nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. However, a word of caution was sounded that easy resort to inherent power was not right except under compelling circumstances. There is no total ban on the exercise of inherent power where (i) abuse of the process of the court or (ii) other extraordinary situation excites the jurisdiction of the Court.

In this connection a reference may also be made to the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, . In this case the bar of Section 397(2) of the Code was under consideration of the Hon''ble Supreme Court. It was held that Section 397(2) clearly bars the jurisdiction of the court in respect of interlocutory orders passed in appeal, enquiry or other proceeding. Section 482 had a different parameter and was a provision independent of Section 397(2). While Section 397(2) applies to the exercise of revisional powers, of the High Court, Section 482 regulated the inherent powers of the Court to pass order necessary in order to prevent the abuse of the process of the Court. Section 482 confers a separate and independent power on the High Court alone to pass orders ex debito Justitiae, in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It was also held that the power u/s 482 of the Code can be exercised only when no other remedy is available. It was, accordingly, found that there was no inconsistency between 397(2) and Section 482 of the Code. The principle of law as relating to Section 397(2) of the Code will equally apply to the principle of law relating to Section 397(3) of the Code as in the case of Madhu Limaye (supra) it was clearly ob-served that nothing in the Code which would include Section 397(2) of the Code, [It will also include Section 397(3)] be deemed to limit or affect the inherent power of the High Court.

In the case of V.C. Shukla v. State through C.B.I. 1980 S.C.C. (Cri) 695 it was held by the Hon''ble Supreme Court that bar of Section 397(3) of the Code does not limit at all the inherent powers of the High Court contained in Section 482 of the Code. It simply stays the revisional powers of High Court or the court of session.

In this connection a reference may also be made to the case of Krishnan and another Vs. Krishnaveni and another, . In this case the first revision petition was filed before the Sessions Judge and was dismissed. The second revision petition was filed before the High Court u/s 397 of the Code. The High Court allowed the revision petition and the order of the Magistrate was set aside. The Hon''ble Supreme Court held though the. revision before the High Court u/s 397(1) of the Code was barred u/s 397(3); the inherent power of the High Court was still available u/s 482 of the Code and as it is in the exercise of paramount power of continuous superintendence, the High Court was justified in interfering with the order leading to miscarriage of justice and setting aside the order of the Magistrate. In view of the aforesaid authoritative pronouncements by the Hon''ble Supreme Court it has to be accepted that the bar of Section 397(3) of the Code will not operate against the exercise of the inherent power by the, High Court u/s 482 of the Code, if the circumstances of a case will warrant the exercise of this power. Hence I do not find any force in this submission of the learned Counsel for the opposite, party.

On behalf of the Petitioner it has seriously been contended that the entire proceeding against him is hit by Section 195 of the Code and is, therefore, not maintainable. In this connection he has drawn my attention to Section 195 of the Code. The relevant portion of this section may be reproduced as follows:

195(1)(11). No Court shall take cognizance 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, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

It has been submitted that the allegation against the Petitioner is that he forged and fabricated certain rent receipts which were produced in the court of an Executive Magistrate in a proceeding under Sections 144 and 145 of the Code. It has been alleged that since those documents were forged and fabricated the court concerned was misguided and ultimately it dropped the proceeding. In this view of the matter, it has been alleged that the offences of forgery as described in Section 463 of the Code or the offences which are punishable under Sections 471, 475 or 476 of the Code could not have been taken cognizance of except on the complaint in writing of that court.

In the present case there is no dispute that the allegation against the Petitioner was that he filed forged rent receipts in the proceeding under Sections 144 and 145 of the Code before the Executive Magistrate. It is also not in dispute that no complaint in writing by. the Execu-, tive Magistrate was filed against the Petitioner alleging filing of the forged and fabricated rent receipts in his court. On the other hand; as would appear from the facts of the present case; opposite party No. 2 had lodged a complaint petition bearing Complaint Case No. 702(c)/89 before the Chief Judicial Magistrate, Madhepura against the Petitioner and one more person. The said complaint petition was forwarded to the police by the learned Chief Judicial Magistrate for registering a case, for investigation and for submission of the charge sheet. The police, accordingly, registered Gamahriya P.S. Case No. 5/90 under Sections 465, 468 and 471 of the Indian Penal Code, investigated the same and submitted the charge sheet. No complaint petition was filed by the learned Executive Magistrate before whom the proceeding under Sections 144 and 145 of the Code was pending. The questions that will now arise in this connection would be whether the bar of Section 195 of the Code will apply to a private complaint petition filed by the opposite party No. 2 before the learned Chief Judicial Magistrate.

The law on this point appears to be quite clear in order to prevent frivolous and vexatious prosecution it has clearly been provided u/s 195 of the Code that no Court shall take cognizance of any offence described in Section 463 of the Code or made punishable under Sections 471, 475 and 476 of the 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 except on the complaint in writing of that court or some other court to which that court is subordinate. In view of this clear provision of law opposite party No. 2 would not have filed any such complaint petition and the learned Chief Judicial Magistrate had absolutely no jurisdiction to entertain the same, to send it to police for the institution of a case and submission of the finai form. As a matter of fact the procedure tor a case instituted u/s 195 of the Code has been provided in Section 340 of the Code which requires that if any court is of the opinion that it is expedient in the interest of justice that an enquiry 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 of 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 record a finding to that effect and make a complaint thereof to a Magistrate of 1st Class having jurisdiction. The provision of this section is very clear and it does not admit of any ambiguity. As pointed out above in this case this procedure of law has not been followed. From this it would appear that entire proceeding against the Petitioner has no sanction of law and, therefore, the same can not be maintained. It Is the bounden duty of the High Court in exercise of its inherent jurisdiction u/s 482 of the Code to quash such a proceeding which has been initiated and continued against the provision of law.

In this connection the opposite party has drawn my attention to the case of Surjit Singh and others Vs. Balbir Singh, . The facts of this case, are however, entirely different. In the said case on a private complaint cognizance was already taken by the Magistrate before the filing of the forged document in civil court. It was held that bar of Section 195(1)(b)(ii) is not attracted. However, the facts of the present case are entirely different. Here the documents alleged to be forged and fabricated were filed before the Executive Magistrate in the proceeding under Sections 144 and 145 of the Code which was dropped by the Magistrate and the complaint petition by opposite party No. 2 was filed much after the disposal of the said case by the Executive Magistrate. Hence the ratio of this decision will not apply to the facts of the present case.

It is not one of those cases within which the copies of the rent receips were produced and not the original one. Therefore, this decision is of no help to the opposite party.

Before concluding I would, however, like to make an observation with respect to the order passed by the learned Sessions Judge in Cr. Revision No. 30/92. Its paragraph No. 3 runs as follow:

It is true that there is considerable force in the submissions, of the learned Counsel for the Petitioners that since no complaint was filed by the concerned Executive Magistrate the learned Magistrate should not have taken cognizance of the offence u/s 471 of the I.P.C. against the Petitioner. However. I notice no illegality or impropriety in the order in taking cognizance for the offence under other sections of the I.P.C. namely, Section 455/467/468 and 120(B) of the I.P.C. So I do not find any necessity to interfere in the matter at this stage. It seems that by mistake cognizance has been taken for the offence u/s 471. I.P.C. also. It is open to the Petitioners to point it out to the trial court at the time of framing of charges. With these observations the revision petition is dismissed.

From the aforesaid observation it would appear that the learned Sessions Judge did not find any illegality or impropriety in the order taking cognizance of the offences under Sections 465/467/468 and 120B of the Indian Penal Code. This shows that the learned Sessions Judge has not properly gone through Section 195(1)(b)(ii) of the Code which starts with the words of any offence described in Section 463 Coming to Section 463 of the Indian Penal Code it appears that under this section forgery has been defined as follows:

Forgery. -Whoever make any 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 the property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." Probably the learned Sessions Judge has missed this definition of forgery. The offences under Sections 465/467/ 468 read with Section 120B of the Code will definitely come within this definition of forgery and will be hit by Section 195(1)(b)(ii) of the Code. This observation of the learned Sessions Judge appears to be unwarranted.

In the result this application is allowed and the order of the learned Chief Judicial Magistrate as also the order of the learned Sessions Judge are hereby quashed. Since the cognizance taken by the Chief Judicial Magistrate is also quashed, the criminal case instituted against the Petitioner stands dismissed.

With the aforesaid observation this application is allowed.