Chandrakantbhai Purshottambhai Patel vs State of Gujarat and Others

Akil Kureshi, J.—Since all these proceedings arise out of common background, they have been heard together and are being disposed of by

this common judgment.

Brief facts leading to these proceedings need to be noted at the outset.

Special Criminal Application No. 682 of 2003 has been filed by one Chandrakant Parshottambhai Patel (hereinafter to be referred to as ''the

original accused''). In this petition, he seeks quashing of criminal complaint bearing C.R. No. I-129/02 dated 21.8.2002 registered at Dhokla

Police Station. Offences alleged are those punishable under Sections 467, 468, 470, 471 read with Section 114 of the Indian Penal Code. By way

of amendment, the petitioner has also challenged an order dated 19.8.2002 passed by the learned District Judge, Ahmedabad Rural, by which the

learned District Judge had directed the Registrar to lodge the above-mentioned complaint.

3.1 It appears that the petitioner herein had filed Criminal Case No. 254A of 2000 against his brother Ishwarbhai Parsottambhai Patel in the Court

of learned Judicial Magistrate, First Class, Dholka for offence punishable u/s 138 of the Negotiable Instrument Act for dishonour of cheque of Rs.

70 lakhs allegedly given by Ishwarbhai Parshottambhai. The learned Magistrate had issued summons. Ishwarbhai had appeared in response to the

summons. The trial was being conducted. Prosecution witnesses were examined. When the stage reached for recording statement of the accused

u/s 313 of the Criminal Procedure Code, Ishwarbhai approached the High Court by filing Criminal Misc. Application No. 4730 of 2001 seeking

quashing of the cheque bouncing complaint. He, however, on 2.7.2001 withdrew the said quashing petition from the High Court with permission to

approach the Trial Court. Thereupon, Ishwarbhai filed application Ex.47 in Criminal Case No. 254A of 2000 levelling allegations of illegalities in

filing of the said criminal case. It is stated that subsequently, this application was also withdrawn. Ishwarbhai, however, made grievance about the

manner in which the said complaint was registered. Eventually, the District Judge on 19.8.02 directed the Registrar of the Court to lodge a

complaint before Dholka Police Station with respect to filing of Criminal Case No. 254A of 2000 before the Court of Judicial Magistrate, Dholka.

3.2 The Registrar thereupon lodged the said complaint on 21.8.2002. In the complaint, it is stated, inter alia, that upon inquiry with respect to

Criminal Case No. 254A of 2000, it is revealed that Criminal Case No. 253 of 2000 was registered before the court of Judicial Magistrate,

Dholka on 25.1.2000 and the first date of the case was fixed on 11.2.2000, i.e. 17 days later. Upon perusal, it is revealed that two cases were

registered under number 254 of 2000. The case of the complainant, Chandrakant Parshottambhai against Ishwarbhai Parshottambhai was

numbered as 254/A/2000 and was shown to have been registered on 25.1.2000. The case pertains to offence u/s 138 of the Negotiable

Instrument Act. The first date fixed was 25.4.2000 i.e. after three months. In the said case, in none of the pages of the complaint, initials or

signatures of the Registrar are to be found. On the presentation also, there is no stamp found. On the complaint, statement of the complainant is

being recorded right below the complaint. Though there was sufficient space, such statement was recorded on a separate paper. It is further

revealed that after registering the complaint, process fee was not paid till 25.4.2000, despite which summons was issued on 25.4.2000. It is further

alleged that vakalatnama at Ex.3/A has been produced subsequently. No one has identified the signature of the complainant. Upon perusal of the

complaint, case papers, register and the summons, it would appear that Complaint No. 254/A/2000 has been filed later on. It is, therefore, alleged

that the present petitioner, viz. Chandrakant Parshottambhai Patel in connivance with other staff members had created fabricated documents to

ensure that the criminal complaint filed by him is treated as within time.

3.3 It is this complaint and the previous order passed by the learned District Judge directing to lodge complaint which have been challenged by the

original petitioner in the present petition. He seeks quashing of the said complaint and the order dated 19.8.2002.

Criminal Misc. Application No. 5631 of 2003 has been filed by Isharbhai Parshottambhai Patel who is the accused in the complaint filed u/s

138 of the Negotiable Instrument Act and upon whose grievance, the impugned complaint against the petitioner came to be lodged. He seeks

permission to join as party respondent in Special Criminal Application No. 682 of 2003.

Criminal Appeal No. 748 of 2002 has been filed by the original accused Chandrakant Parshottambhai Patel, in which he has challenged the

order dated 19.8.2002 passed by the learned District Judge, Ahmedabad Rural, contents of which are already noted earlier. It may be noted that

a copy of this order is not produced in the appeal papers and in any case, this very order is under challenge in Special Criminal Application No.

682 of 2003 also.

Criminal Misc. Application No. 7117 of 2002 has been filed by Ishwarbhai Parshottambhai Patel. Here also, he seeks permission to join as

party respondent in Criminal Appeal No. 748 of 2002 filed by the original accused Chandrakant Parshottambhai Patel.

Though the above proceedings were admitted by the High Court, no stay was granted. The investigation was, therefore, completed and

chargesheet was filed before the learned Magistrate, who despite objections from the original accused went ahead with framing of charge. The

original-accused thereupon filed Criminal Revision Application No. 12 of 2007 before the learned Sessions Judge, Ahmedabad Rural and

challenged the order of the Magistrate framing charge by the order dated 6.11.2006. This revision, however, came to be dismissed by the

Sessions Court by the order dated 7.2.2007. The petitioner, original accused, therefore filed Special Criminal Application No. 260 of 2007

challenging those orders.

It can thus be seen that though there are several proceedings with respect to the same complaint, in essence, challenge of the petitioner is with

respect to the complaint dated 21.8.2002 lodged before Dholka Police Station, by the Registrar of the District and Sessions Court, Ahmedabad

Rural, a copy of which is produced at Annexure A to Special Criminal Application No. 682 of 2003. The petitioner has also incidentally

challenged the administrative order passed by the learned District and Sessions Judge on 19.8.02 directing the Registrar to lodge the said

complaint. Legal submissions also have been directed against the two proceedings, the ultimate result of Special Criminal Application No. 682 of

2003 in which proceedings have been challenged would govern all other cases also.

At the outset, I may record that the applications filed by Ishwarbhai Parshottambhai Patel for joining himself as party respondent in the quashing

petition of the original petitioner as well as in the Criminal Appeal filed by him can be summarily disposed of. Admittedly, Ishwarbhai

Parshottambhai Patel is not the complainant. The complaint has been lodged by the Registrar of the District and Sessions Court, Ahmedabad

Rural. The Court has issued notice to the State as well as to the original-complainant. Ishwarbhai Patel, therefore is not a necessary party. His

applications for joining party are therefore, required to be dismissed.

Before recording and dealing with the rival submissions, I may record that when the matters were taken up for hearing, after about 15 minutes

of arguments, learned advocate for the petitioner sought time to place additional documents on record. His request was turned down since such

documents could have been produced much earlier and in any case request should have been made before arguing the cases. Thereupon, after

further arguments of about half-an-hour, Counsel raised an objection that the petitions are notified in the admission board and not in the final

hearing board and therefore also, the Court should not take up final hearing thereof. I found that the petitions are pending the year 2003. Later

petition filed in the year 2007 was admitted on 28.2.07 and ad-interim relief was granted. I did not, therefore, find it appropriate that such technical

objections be accepted and the petitions be re-notified on final hearing board and thereafter only it can be taken up that too after investing

considerable time in hearing the arguments. When this objection was overruled, learned Counsel for the petitioner was given further 15 minutes to

conclude his arguments, which he very reluctantly did.

Appearing for the original accused, learned advocate Shri Bhargav Bhatt raised the following contentions:

That the learned District Judge while passing the administrative order dated 19.8.2002 cannot by-pass the provisions of Section 195 and 340 of

the Criminal Procedure Code.

That only the Court before whom the alleged offence has been committed can lodge the complaint and in the present case since the Registrar has

filed the complaint before the Police, such a complaint is not maintainable.

That in any case, since the case is covered under Chapter XII of the Criminal Procedure Code, procedure u/s 340 of the Cr.P.C. is to be followed

which in itself provides a complete procedure. The Police has, therefore, no power to investigate into any such allegations.

In support of his contentions, he relied on the following judgments:

In the case of M. Narayandas v. State of Karnataka JT 2003 (Supp.1) SC 412 wherein the Apex Court observed that Sections 195 and 340 do

not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. However, once the investigation is

completed, then embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, the Court

could file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in

Section 340 of the Criminal Procedure Code is followed.

In the case of Sudalaimadam and Another Vs. The State, wherein learned Single Judge of the Madras High Court has observed as under:

Hence, the complaint referred to in Section 195, Cr.P.C. is a complaint to the Court and not a complaint to the Police. No doubt, explanation to

Section 2(d) makes any report made by a police officer in case which discloses, after investigation, the commission of a non-cognizable offence to

be a complaint. But in that case, the police officer by whom such report is made shall be deemed to be the complainant. What Section 195 of the

Code of Criminal Procedure requires is that the complainant before the Court must be the officer concerned. Inasmuch as the complaint in this

case for an offence u/s 186, I.P.C. Has not been preferred before the Court by the concerned special Deputy Tehsildar, B Bond check post,

Pullyari, who is said to have been obstructed by the petitioners-accused, this prosecution u/s 186, I.P.C. Cannot stand.

In the case of P.S. Rajya Vs. State of Bihar, wherein the Apex Court observed that the standard of proof required to establish the guilt in a

criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings and if the charge which is

identical could not be established in a departmental proceedings, there would be no further need to proceed against the person in criminal

proceedings.

On the other hand, learned Counsel Shri Pardiwala for the complainant and the learned APP for the State opposed the petitions. Counsel Shri

Pardiwala submitted that the case does not fall within the ambit of Section 195 of the Criminal Procedure Code and therefore procedure u/s 340

was not necessary. He contended that even if the case was covered u/s 195 of the Cr.P.C., the same does not debar Police investigation as has

been held in series of decisions of the Apex Court.

12.1 He relied on following decisions in support of his contentions:

In the case of Dr. S.L. Goswami Vs. The High Court of Madhya Pradesh at Jabalpur, wherein the Apex Court discussed the scope of Section

195 of the Cr.P.C.

In the case of State v. M. Krishna Mohan, the Apex Court found that the Departmental Inquiry against the accused was completed even before

the investigation in criminal cases had started and such inquiry was initiated only against one of the accused. Holding that the Inquiry Officer did not

have the benefit to consider all materials which could be brought on record through investigation, the Apex Court held that exoneration of accused

No. 2 in departmental proceedings cannot lead to the conclusion that he was not guilty of commission of offences wherefor he was charged.

Central Bureau of Investigation v. V.K. Bhutiani (2009) 10 SCC 674, wherein the Apex Court was pleased to reverse the order of quashing

passed by the High Court. It was observed in para 9 of the judgment as under:

In our opinion, though the report of the Central Vigilance Commission may be a relevant factor, it cannot be held to be ''be all or end all'' of the

matter for prosecuting the accused persons of such serious offences.

It was further observed in para 12 as under:

The ruling of P.S. Rajya was considered by this Court in State v. M. Krishna Mohan wherein this Court after elaborate discussion, found that

where the fact situation was different, reliance could not be made (sic placed) altogether on the report of the Central Vigilance Commission.

Relying on the ruling of State of Haryana v. Bhajan Lal this Court reiterated the position that where there could be some material found in the

chargesheet, then it would not be the function of the court to examine the charge-sheet with a view as to whether the accused could be convicted

or not. That would be a premature exercise.

I may state that the Counsel for the petitioner original accused had urged before me that the departmental proceedings were carried out against

erring employees of the Court including the concerned Magistrate. Such proceedings were subsequently dropped. It was his case that when no

case for proceeding departmentally could be found, thereafter there is no possibility of continuing the criminal proceedings. Documents pertaining

to such departmental proceedings and the conclusion thereof are not on record. It is, therefore, not possible to judge on what basis, if at all, the

departmental proceedings were dropped against the Government servants. In the present case, however, the Investigating Agency through the

impugned complaint is required to investigate the role of the present petitioner. Such investigation has been completed and chargesheet has been

filed. In fact, even charge has been framed by the concerned Magistrate. Surely, the petitioner-accused was not subjected to departmental inquiry

proceedings. Such proceedings, therefore, would never have inquired into the angle of involvement, commission or omission of the petitioner-

original accused. Therefore, the same cannot be a ground for quashing the criminal proceedings against the petitioner.

Coming to the main challenge to the lodging of the complaint and filing of charge-sheet vis-a-vis the provisions contained in Section 195 and

Section 340 of the Criminal Procedure Code, Section 195 in so far as relevant for the purpose of deciding the issue reads as under:

195.(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 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 by such officer of the Court as that Court may authorise in writing in this behalf or of some

other Court to which that Court is subordinate.

....

Section 340 of the Criminal Procedure Code pertains to procedure in cases mentioned in Section 195. Sub-section (1) thereof in particular

provides as under:

340.(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.

Short question is whether the case on hand falls under Sub-section (1) of Section 195 of the Criminal Procedure Code. If so, cognizance of such

an offence cannot be taken except on the complaint in writing of the Court concerned or by such Officer of the Court as that Court may authorize

in this behalf or of some other court to which that Court is subordinate.

It is an admitted position by both sides that if at all, the case would fall under Sub-clause (ii) of Clause (b) of Sub-section (1) of Section 195

and no other clause. As is apparent, the said Sub-clause covers offences described in Section 463 which are punishable u/s 471 or punishable u/s

475 or 476 of the Indian Penal 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. The vital requirement for applicability of the said provision therefore is that the offence in question is

''alleged to have committed in respect of a document produced or given in evidence in a proceeding in any Court''.

In the present case, the allegations are very clear. As noted above, it is the case of the complainant that the petitioner had lodged a complaint

for dishonour of cheque, but fabricated the documents to show that the same was filed within the limitation prescribed. It cannot be stated that the

allegations even according to the complainant are that fabrication was done in respect of documents produced or given in evidence in a proceeding

in any Court. It is a plain and simple case of fabrication of document and in my opinion would not be covered u/s 195(1)(b)(ii) of the Cr.P.C. The

embargo of court not being able to take cognizance otherwise on the complaint in writing as contained in Section 195(1) therefore would not

apply. The question of following the procedure u/s 340 of the Cr.P.C. therefore also would not arise.

In the case of S.L. Goswami (supra), the Supreme Court had examined a similar issue. Portion of para 8 which is relevant is reproduced

herein-below:

We will now deal with the other requirements of Section 195(1)(c) namely that the offence should be alleged to have been committed by a party

to any proceeding and that it should be in respect of a document produced or given in evidence in such proceeding.

xxxx

In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, it was held that a document produced in a proceeding before the court during

the investigation by the police ordered u/s 156(3) of the Criminal Procedure Code would not be a document produced in a proceeding before the

court so as to attract the ban u/s 195(1)(c) of the Criminal Procedure Code. This Court in a recent decision in Legal Remembrancer of Govt. of

West Bengal Vs. Haridas Mundra, held that the requirement of Section 195(1)(c) is that the document in question should be produced or given in

evidence in the proceeding before the court. We find on the facts of the case that it has not been established that the document was produced or

given in evidence in a proceeding before the court. The requirements of Section 195(1)(c) having not been satisfied a complaint by the court in

writing is not necessary.

In the case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, the Apex Court held as under :

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.

This decision was followed in a later decision in the case of K. Vengadachalam v. K.C. Palanisamy and Ors. (2005) 7 SCC 352 and following

observations were made:

Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the respondents submitted that the respondents are entitled to claim protection

u/s 195(1)(a) CrPC, which enumerates the offences punishable under Sections 172 to 188 IPC. It has been pointed out that according to the

petition of complainant, the accused persons had falsely field a complaint before the Deputy Registrar, Chits, who dismissed the matter finally. The

said complaint was not dismissed by the Deputy Registrar on merits, but without any adjudication, inasmuch as there was no finding that the

complainant had lodged a false complaint before the Deputy Registrar. The present complaint does not relate to falsity or otherwise of the

complaint before the Deputy Registrar; rather according to the prosecution case, the accused persons are said to have forged the document. This

being the position, in our view, the provisions of Section 195(1)(a) CrPC, shall have no application to the case in hand. For the foregoing reasons,

we are of the view that the High Court was not justified in quashing prosecution of the respondents.

This view was reiterated in the case of Mahesh Chand Sharma Vs. State of U.P. and Others, wherein the Apex Court observed:

The law on the point is too well settled in the light of the abovesaid two judgments of this Court that Section 195(1)(b)(ii) CrPC contemplates

a situation where offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a

proceeding in any court.

The order passed by the District Judge was only an administrative order directing the Registrar to file a complaint. When prima facie, it was

found that certain offences have been committed in registering a complaint, the learned District Judge committed no illegality in passing such an

order. Looking to the very nature of the order, I do not find any case for interference.

When I find that no case for quashing the complaint is made out on the grounds urged before me, the challenge to the framing of charges based

on the same set of grounds also must fail.

Before closing it may be recalled that counsel for the complainant has suggested that even in cases covered u/s 195 of Cr.P.C., investigation by

the police is not barred and therefore, also the Court should not interfere. This contention, however, would not be valid in the present case, since

the proceedings have travelled beyond the stage of police investigation. Such investigation was completed and chargesheet has been filed and the

Court has taken cognizance and even charges have been framed.

In the result, all the petitions, Criminal Appeal and Misc. Criminal Applications are dismissed. Rule is discharged. Interim relief is vacated.

At the request of the learned advocate for the petitioner, this order shall stand stayed upto 15th October, 2010.