Israil and Others vs Kaddar and Another

Kundan Singh, J.—This petition has been filed u/s 482, Code of Criminal Procedure, for quashing of the proceedings In Criminal Case No. 34 of 1980, under Sections 419, 463, 464, 465, 468 and 471, I.P.C. pending in the Court of Judicial Magistrate, Phulpur, Azamgarh.

Opposite Party No. 1 Kaddar filed a complaint against the applicants under Sections 419, 463, 464, 465, 468 and 471, I.P.C. with the allegations that the complainant Is bhumidhar In possession of Chak No. 17, in area 603 karries, situate in village Sedhanpatti, P.S. Kandhapur, district Azamgarh. Accused Nos. 1 and 2 are the nephews of the complainant. In order to grab the property of the complainant accused Nos. 1 and 2 in collusion with accused Nos. 3 to 7 got a forged sale deed dated 26.3.76, executed in their favour through a person impersonating complainant. On the basis of that forged sale-deed accused Nos. 1 and 2 applied for mutation of their names before the A.C.O. u/s 12 of the U.P. Consolidation of Holdings Act and used the said sale-deed, knowing it to be forged, as genuine and succeeded in obtaining ex parte order of mutation in their favour on 8.7.76 but that order was set aside on appeal. The complainant further alleged that he never executed any sale-deed in favour of accused Nos. 1 and 2 nor he ever applied for mutation. He never signed or thumb marked the alleged sale-deed nor he appeared before the Sub-Registrar.

Learned Magistrate after recording statements under Sections 200 and 202, Code of Criminal Procedure found a prima facie made out against the applicants and he accordingly summoned them. At the time of framing of charges, the applicants raised a preliminary objection challenging the jurisdiction of the learned Magistrate that he was not competent to take cognizance of the offence in view of the bar enumerated in Section 195(1)(b)(ii), Code of Criminal Procedure. The Magistrate rejected that preliminary objection and passed order framing charges against the accused applicants for the offence of forging sale-deed dated 26.3.76. The applicants feeling aggrieved by order of learned Magistrate preferred Criminal Revision No. 125 of 1981 before the Sessions Judge, Azamgarh. The learned VIIIth Additional Sessions Judge dismissed the revision by order dated 5.1.82 holding that the Magistrate was quite justified in coming to the conclusion that the cognizance on the complaint by learned Magistrate was not barred u/s 195(1)(b)(ii), Code of Criminal Procedure. The applicants have now come up to this Court against the order passed by the courts below.

Heard learned Counsel for the parties.

The question that centres round this petition is as to whether the Magistrate had jurisdiction to take cognizance of the offences specified u/s 195(1)(b)(ii), Code of Criminal Procedure in respect of a document produced or given in evidence in a proceeding in the court. In the present case the alleged offences under Sections 419, 463, 464, 465, 468 and 471, I.P.C. were committed by the applicants by getting a forged sale-deed executed through a person Impersonating him as the complainant in order to cause damage to the complainant. The contention of the learned Counsel for the applicants is that the alleged forged sale-deed was filed in the mutation proceedings and the mutation court alone was competent to take cognizance of the said offences. The Magistrate concerned was not competent to take cognizance unless the complaint was filed by the court concerned where the document was produced and given in evidence and since here no such complaint was filed by the A.C.O., therefore, the learned Magistrate had no jurisdiction to take cognizance on the complaint of the opposite party. In support of the above contention the learned Counsel for the applicants relied on a decision in Naksay Lal v. Kedar Singh and Ors. 1982 UP CrR 69.

I have given anxious thought to the submission made by the learned Counsel for the applicants. It is a case in which a forged document was prepared before the Sub-Registrar and it was filed before the mutation court. We have to see at this stage as to whether the offence was committed in respect of the document produced or given in evidence in a proceeding in the court. In this connection Karnataka High Court in the case of Azeezuddin Vs. The State of Karnataka, made observations as follows:

In this case, the offence of forgery u/s 471, I.P.C. was alleged to have been committed by the Appellant in respect of documents which were not produced or given in evidence in any proceedings before any court earlier to the proceedings in which the Appellant was tried for the very offence of forgery committed in respect of those documents for having used them as genuine knowing them to be forged for the purpose of deceiving the defence authorities by dishonestly and fraudulently inducing them to deliver certain sum of money. The police on coming to know that certain offences including one punishable u/s 471 were committed by the Appellant, registered a case against him, investigated and placed a charge-sheet before under Section 190 of the new Code. If the argument of Srinivasachar is to be accepted and it is to be held that a complaint by the learned Special Judge is required for taking cognizance of the offence alleged against the Appellant merely because those documents were produced in the prosecution of the Appellant for the very offence of forgery committed by him in respect of those documents, it would amount to interference with the statutory powers of the police to investigate a crime. That may not be the intention of the legislature in amending the provisions contained in Section 195(1)(b)(ii) of the new Code. For the reasons aforesaid, the legal objection raised by Sri V.V. Srinivasachar, learned Counsel for the Appellant, is rejected.

A Full Bench of Punjab and Haryana High Court has also laid down the principle for determining the bar u/s 195(1)(b)(ii). Code of Criminal Procedure in the case Harbans Singh and Others Vs. State of Punjab, in the following lines:

The net result of the discussion is that Karnail Singh and Another Vs. The State of Punjab, is correctly decided and depicts the correct position of law. Section 195(1)(b)(ii) of the new Code is limited in Its operation only to the offences mentioned in this Section if committed in regard to a document produced or given In evidence in such proceedings, while the document is in the custody of the Court. It has no application to a case in which a document is fabricated prior to its production or given in evidence.

The Supreme Court has also made an observation in this respect that in case some offence has been committed in respect of a document which was filed after initiation of the criminal proceedings, the bar of Section 195(1)(b)(ii) of Code of Criminal Procedure will not be attracted for a Criminal Court to take cognizance in respect of an offence committed in a proceeding not already in custody. In the recent case the Apex Court in the case Mahadev Bapuji Mahajan (dead) and another Vs. State of Maharashtra, , it has been observed in the line as under:

Regarding offences committed before the start of the proceedings, the High Court In our view, has rightly held that no complaint is necessary by the court concerned either in the old Code or in the new Code. Therefore, the contention that the absence of a complaint by the Revenue Court was a bar for taking cognizance by the Criminal Court in respect of these offences which were committed even before the start of the proceedings before the Revenue Court cannot be sustained. The view taken by the High Court appears to be correct.

The bar laid down under the provisions of Section 195(1)(b)(ii) of Code of Criminal Procedure is in connection with the offence mentioned in this section if committed during the pendency of the proceedings. For instance if some forged document is prepared or executed and that document is filed before the court in support of any claim that forgery or fraud will not be treated as being committed in respect of the document produced or given in evidence in a proceeding in the court. Hence the cognizance by any other court where the forgery or fraud is in dispute can be taken and does not come within the purview under the provisions of Section 195(1)(b)(ii), Code of Criminal Procedure. In the present case the forgery and fraud was committed prior to the institution of the proceeding in the court even before the mutation court. The learned Magistrate was fully competent and had jurisdiction to take cognizance of the offence of forgery and fraud committed by the applicants till the stage of registration of sale-deed before the Sub-Registrar.

Accordingly this application has no merit and is hereby dismissed. The stay order dated 3.2.82 stands vacated.