Chanda Khan and Others vs State of U.P. and Another

B.K. Sharma, J.—This is a revision against an order dated 27.9.1996 passed by the then VIth Additional Munsif Magistrate, Mathura in State v. Chanda Khan and 13 others. Case No. 2171/IX/96. relating to Case Crime No. 9 of 1996, u/s 420/467/468/471, I.P.C., Police Station, Sureer, district Mathura, whereby he rejected the application of the accused-revisionists that the cognizance of the case by him was barred by Section 195(1)(b) of the Code of Criminal Procedure.

The relevant portion of Section 195, Code of Criminal Procedure. Is as under:

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).....

(W).......

aw........

(b)(i)......

(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 (W

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

In this revision, an interesting question has arisen as to the interpretation of the provisions of Section 195 of the Code of Criminal Procedure. One Hakim alias Habit died. On his death, mutation application was moved before the Tehsildar, Manth, district Mathura (revenue court). The said application was registered as Case No. 246 of 1995 u/s 34 of the Land Revenue Act for mutation on the basis of a Will-deed dated 15.2.1995 alleged to be executed by Hakim alias Habit deceased. According to the revisionists, the death took place on 14.4.1995 and before that on 15.2.1995, the deceased Hakim executed the Will In favour of revisionists. On 5.1.1996, opposite party No. 2 Smt. Kishwar Jahan moved an application before the Superintendent of Police, Mathura on which basis Case Crime No. 9 of 1996, Under Sections 420, 467, 468 and 471, I.P.C. was registered. The allegations were that the said Will was a forged document and that the offences u/s 420/467/468/471, I.P.C. were committed by the present accused- revisionists. After investigation, a charge-sheet was filed and the accused-revisionists were ordered to be summoned by the learned Magistrate vide his order dated 21.6.1996. The learned Counsel for the accused-revisionists moved an application before the learned Magistrate claiming that the jurisdiction of Magistrate to take the cognizance was barred u/s 195, Code of Criminal Procedure. The learned Magistrate rejected the application by the impugned order dated 27.9.1996 holding that if a forgery has been committed in respect of any document before its filing in Court, a complaint by concerned Court is not needed and that the Magistrate could take cognizance at the instance of a private party. Being aggrieved by the said order, the present revision has been preferred by the accused-revisionists.

The simple question is whether the provision of Section 195(1)(b)(ii) of the Code of Criminal Procedure applied only to a case where the forgery has been committed in respect of a document during the period it was in custodians legis as claimed by the learned Counsel for the Respondent No. 2 or it would operate also to cover all cases of forgery in a document produced in evidence before the Court whether the forgery was committed in respect of the document before its filing in the Court or during the period it (the document) remained in the custody of the Courts claimed by the learned Counsel for the revisionists. In this regard, the learned Counsel for the revisionists has relied on the following authorities:

(1)Narvadeshwar Tiwari and Anr. v. State of U.P. and Anr. (24) 1987 ACC 63.

(2) 1984 Crl 1692.

(3)Surjit Singh and Ors. v. Balbir Singh (32) 1996 ACC 343.

In support of his propositions. He has also relied on a Full Bench decision of this Court Ram Khelawan and Ors. v. State of U.P. 1998 ACJ 66.

These authorities do support the contention of the learned Counsel for the revisionists. The Apex Court in the authority of Surjit Singh and Ors. v. Balbir Singh (supra), said that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the Court or given in evidence, the bar of taking cognizance u/s 195(1)(b)(ii) gets attracted and the criminal court is prohibited to take cognizance of offence unless a complaint in writing is filed as per the procedure prescribed u/s 340 of the Code by or on behalf of the Court.

It was said in the decision of Full Bench in the case of Ram Khelawan and Ors. v. State of U.P. (supra) as under:

if by the words ''while the document is in custody of the Court", it was meant that the bar would apply only when the forgery has been committed in regard to a document while it was in custody of the Court and not otherwise, then we And ourselves to be not in agreement with the said interpretation. However, if the term "while the document is in custody of the Court'' is to be interpreted to mean that a document which has been forged and has close nexus or has proximity to the proceedings in the Court and the bar u/s 195(1)(b)(ii) of the Code of Criminal Procedure would apply in relation of such a document only when that document is in custody of the Court, then this interpretation meets our full approval.

The Full Bench, however, said that the provision of Section 195, Code of Criminal Procedure., has no application to a case in which such a document is fabricated long before its production or its being tendered in evidence.

However, the learned Counsel for the accused-revisionist has relied upon the latest decision of the Apex Court in the case of Sachida Nand Singh and Anr. v. State of Bihar and another JT 1998 (1) SC 376. In this authority, the question before the Apex Court was directly considered and answered by it. The Apex Court held that the bar contained in Section 195(1)(b)(ii), of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court. This judgment has been rendered by the Full Bench consisting of three Hon''ble Judges (Hon. M.M. Punchhi, CJI Hon. K.T. Thomas and Hon. M. Srinivasan, JJ.) where the point in issue was directly considered and decided. So, I am bound to follow Tile latest view of the Apex Court.

It has also been argued by the learned Counsel for the accused-revisionists that no distinct and separate offences u/s 419/420, I.P.C. made out other than the one u/s 195, Code of Criminal Procedure and so no cognizance can be taken of the private complaint even to the extent of the offence u/s 419/420, I.P.C. He has cited the authority of this Court In the case of Padohi Ram v. State of U.P. 1990 Cr U 495, but In view of what has been stated above. It is not necessary to enter into the question whether on the material before the Magistrate the offence u/s 419/420, I.P.C. was also made out or not.

Consequently, the impugned order passed by the learned Magistrate is perfectly valid in the eyes of law. So, this revision fails and is dismissed.