Kailashchandra Singhal vs Rameshwar Dayal

D.K. Paliwal, J.—This revision petition has been preferred u/s 397/401 of Cr.P.C. against the order dated 25.05.2009, passed by JMFC, Gwalior in Criminal Case No. 8721/2008 whereby the prayer regarding dismissal of the private complaint made by respondent upon which cognizance has been taken under Sections 420, 464, 467, 468, 471, 474, 198, 205, 209, 120-B of IPC was dismissed. Brief facts of the petition are that a forged will of deceased Moolchand @ Mohanlal S/o Late Shri Banshilal Singhal has been produced in the proceedings before the IIIrd ADJ, Shivpuri in Probate Case No. 01/1997 (Dharmendra Singhal Vs. Sarvsadharan and Others), in which learned Court below has held that the alleged will is forged one. Thereafter, respondent has filed a private complaint before the JMFC, Gwalior, against the petitioner and other co-accused persons namely Dharmendra Singhal, Om Prakash Agrawal, Anil Kumar Singhal, Babulal, Subhash Chandra, Brij Mohan Maheshwari, Y.S. Tomar and Shailendra Singh Jadon under Sections 420, 464, 467, 468, 471, 474, 198, 205, 209, 120-B of IPC. On the basis of the private complaint, cognizance has been taken against the petitioner and aforesaid co-accused persons u/s 420, 467, 468, 471, 120-B of IPC. Thereafter, petitioner has preferred an application alleging that the document, which has been alleged to be forged one has been filed before the IIIrd ADJ, Shivpuri, therefore, the jurisdiction for entering the complaint lies with the ADJ, Shivpuri. The Court at Gwalior, has no jurisdiction to take the cognizance and in that application, it was prayed that the complaint be dismissed as not maintainable.

The application preferred by the petitioner has been rejected by the learned JMFC, holding that after taking cognizance the Court cannot change its decision. Being aggrieved of the same, this revision petition has been preferred.

Learned counsel appearing on behalf of the petitioner submits that the document, which is alleged to be forged one has been filed in the Court of ADJ, Shivpuri, therefore, only the Shivpuri Court is competent to take cognizance, learned JMFC has not considered this legal aspect, therefore, the impugned order is illegal and the learned JMFC has lost the sight of the fact that the private complaint has been filed at Gwalior with a view to harass the petitioner, it is prayed that the impugned order be set aside.

Learned counsel for the respondent and public prosecutor supported the impugned order and submits that no illegality has been committed by the JMFC.

I have considered the rival submissions of the parties. It is admitted fact that the alleged will has been filed in Probate Case No. 01/1997 pending in the Court of IIIrd ADJ, Shivpuri. It is also not disputed that the alleged will has been held to be suspicious one in the Miscellaneous Appeal No. 343/1999, preferred by the co-accused Dharmendra Singhal before this Court which has been dismissed. LPA No. 66/2003 was preferred by Dharmendra Singhal, which was also dismissed, thereafter SLP No. 1826/2004 was preferred before the Hon''ble Supreme Court, which has also been dismissed vide order dated 26.03.2004.

Section 195 of Cr.P.C. is reproduced as under:-

Section 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 offense, 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 section 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 authorize in writing in this behalf, or of some other Court to which that Court is subordinate } (2) Where a complaint has been made by a public servant under Clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:"

It is evident that the provision of Section 195(1)(b)(ii) attracts when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, the word "any offence" described in Section 463, Penal Code means all forms of forgery described therein though they may be punishable under different sections of the Code. Thus, clause (b)(ii) will apply to an offence u/s 465, 466, 467 and 468 of the Penal Code as they are all offences described in Section 463. Dr. S.L. Goswami Vs. The High Court of Madhya Pradesh at Jabalpur, Thus, the Court is barred from taking cognizance unless the complaint is field by Court, as provided u/s 195(a)(b)(ii) of Cr.P.C.

Learned Magistrate has taken cognizance regarding forged Will produced in evidence in the proceedings of Probate No. 01/1997 before the IIIrd Additional Sessions Judge, Shivpuri, against the petitioner for the offence prescribed u/s 463 of IPC and punishable under Sections 420, 464, 467, 468, 471, 474, 198, 205, 209 and 120-B of IPC, therefore, JMFC, Gwalior has committed illegality in taking cognizance of the offence on the private complaint u/s 195(1)(b)(ii), which clearly goes to show that taking cognizance of the offence described u/s 463 of IPC and punishable under Sections 465, 466, 467 and 468 of the Penal Code with respect to forged document in an evidence before the proceedings in Court u/s 195(1)(b)(ii) Court of ADJ, Shivpuri was competent to file the complaint. The complainant ought to have filed the application before the IIIrd ADJ, Shivpuri for filing the private complaint against the petitioner and co-accused regarding production of forged will in the proceedings instead of it, the complainant has filed the private complaint before the JMFC, Gwalior. Learned JMFC, Gwalior is not competent to take cognizance on the private complaint. In view of the above analysis, in my opinion, the learned JMFC, Gwalior has committed illegality in passing the impugned order. This revision petition deserves to be allowed. Consequently revision petition is allowed, impugned order is set aside.