Maya Ram vs State of Haryana

N.K. Agrawal, J.

This is a petition under Section 482, Criminal Procedure Code, 1973 (for short, the Code) by 4 persons who, along with 6 others, are facing trial under Sections 218, 420, 467, 471 and 120B, Indian Penal Code (for short, the IPC), in the Court of Judicial Magistrate, I Class, Kurukshetra.

Two civil suits (Nos. 379 and 380 of 1986) were filed by Smt. Banto (petitioner No. 3 herein) on February 8, 1985, seeking declaration and permanent injunction. The plaintiff, Smt. Banto, had averred in her plaints in both the suits, that Smt. Sardari was the owner of certain land and that Smt. Sardari had executed a Will in her favour on June, 25, 1964 regarding her estate in village Fatehgarh. The plaintiff claimed to have become the owner of the suit land on the basis of that Will. She claimed that, after the death of Smt. Sardari, she was in possession of the suit land. Mutation was, however, wrongly sanctioned in favour of the defendants by the Assistant Collector, II Grade, Radaur, on July 21, 1984 though mutation had already been sanctioned in favour of the plaintiff on December 26, 1983, on the basis of the Will. The plaintiff prayed that she may be declared to be the ownerin possession of the land and the subsequent sanction of mutation be declared null and void. Both the suits were consolidated and tried together and were decided by a common judgment and decree dated September 10, 1987 (Annexure P 3). The learned Sub Judge did not rely upon the Will which was produced and was the subjectmatter in the suits. The suits were dismissed with the following observations :

"If in fact such Will was ever executed by her, she should have made the mention as to why she was depriving her real sons and daughters. I do admit that the Will being registered and unregistered does not make any difference if the same has been executed by the executant out of her or his free will and beyond suspicious circumstances, but in the present case, the circumstances in which the alleged Will was executed by Smt. Sardari are suspicious one. Therefore, I am of the considered view that she never executed any Will in her life time and the alleged Will might have been forged by the plaintiff with the connivance of the attesting witnesses, its scribe and Kali Ram. Hence I decide this issue against the plaintiff and in favour of the defendants and this Will has no effect on the rights of the defendants."

An F.I.R. (No. 200 dated 16.12.1988) was lodged by Jai Ram (who was defendant No. 4 in the aforesaid civil suits) at P.S. Ladwa, District Kurukshetra with the allegation that the persons named therein had forged and fabricated the Will dated June 25, 1964 in favour of Smt. Banto wife of Baru Ram (plaintiff in the Civil suits) regarding the property of Smt. Sardari. The police, after investigation, filed a challan in the Court. The Judicial Magistrate, I Class, Kurukshetra, by his order dated July 20, 1991 (Annexure P2) ordered that charges shall be framed against the 10 accused persons (including the 4 petitioners herein) under Sections 218, 420, 467, 471 and 120B, IPC.

Learned counsel for the petitioners has challenged the prosecution of the petitioners with the plea that in the absence of a complaint in writing by the Civil Court under subclauses (ii) and (iii) of Section 195(1)(b) of the Code, prosecution was invalid. Subclauses (ii) and (iii) of Section 195(1)(b) of the Code read as under :

"195. 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) xxx xxx xxx

(b) (i) xxx xxx xxx

(ii) of any offence described in Section 463, or punishable under Section 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 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 subclause (i) or subclause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate."

Learned counsel for the petitioners has argued that the plaintiff had pleaded in her suits that the Will in question was a genuine document. That plea was not found to be true by the SubJudge. An appeal was filed against the judgment and decree of the SubJudge, but that was dismissed by the Additional District Judge, Kurukshetra. Further appeal was also dismissed by the High Court in limine. However, S.L.P. is pending before the Supreme Court. Since there was a legal bar as provided in subclauses (ii) and (iii) of Section 195(1)(b) of the Code, the entire investigation by the police and the proceedings before the criminal Court are invalid and illegal in the absence of a complaint in writing by the civil Court where the document had been produced in evidence. The Civil Court in which the Will was produced could alone initiate prosecution in respect of its forgery or fabrication by filing a complaint in writing. The lodging of an F.I.R. by Jai Ram was unauthorised and contrary to the specific provisions of subclauses (ii) and (iii) of Section 195(1)(b) of the Code.

Learned counsel for the petitioners has placed reliance on a decision of the Calcutta High Court in Mrityunjoy Das v. State, 1987 Cr.L.J. 909. That was a case where the Process Server of the Court, while delivering possession of the decretal premises to the decreeholder, was obstructed by the accused whereupon the Process Server lodged First Information Report with the police. It was held that, in the absence of a written complaint by the Process Server, cognizance of the offence should not have been taken in the case by the Magistrate.

Reliance is also placed by the learned counsel for the petitioners on a decision of the Karnataka High Court in H.N. Nanjegowda v. State of Karnataka, 1988 Cr.L.J. 807. That was a case where a Police Officer had gone to the house of the accused with a search warrant and the accused had called his supporters who prevented the Police Officer from executing the warrant. The police report disclosed the offence punishable under Section 186, I.P.C. It was held that Magistrate could not take cognizance of the offence punishable under Section 186, IPC, except on the complaint in writing of the public servant concerned or of some other public servant to whom he was administratively subordinate.

The aforesaid two decisions relied upon by the learned counsel do not help him at all inasmuch as the question raised in the present petition is in respect of a document which was produced in evidence before a Civil Court and which was found to be a forged document.

Learned counsel for the petitioner has also relied upon a decision of this Court in Raj Singh v. State of Punjab, 1997(2) Recent CR 100 . That was a case where decree of a Civil Court was obtained by the accused persons by impersonation. It was held that the police cannot register the case and investigate as Section 195 of the Code creates a bar not only to the Court taking cognizance of offence without a complaint in writing from the Court where the offence took place, but the bar was applicable even to the registration and investigation by the police into the offence.

The aforesaid judgment is also of no help to the petitioners inasmuch as the controversy here is entirely different.

The Full Bench of this Court had an occasion to consider a similar matter in Harbans Singh and others v. The State of Punjab, 1986(2) Recent CR 481 . That was a case where a document was alleged to have been forged. That document was on the file of a civil Court at the instance of one of the accused. Once of the defendants therein lodged an F.I.R. with the police alleging commission of offence of forgery in relation to that document. Since the document was in the Civil Court and it had been used by way of evidence, the question arose for consideration whether investigation in that case could be allowed to go on when allegedly the forged document had been produced before the civil Court in the civil proceedings. It was held in paragraph 15 as under :

"(i) The provisions of section 195(1)(b)(ii) of the new Code are by way of an exception to the general right of a citizen to approach ordinary criminal courts as contained in section 190 of the Code and hence should be strictly construed.

(ii) Sections 195 and 340 of the new Code form part of statutory scheme dealing with the subject of prosecution for offence against the administration of justice and thus have to be read together to ascertain the intention of the legislature.

(iii) The offences about which the Court alone to the exclusion of the aggrieved party has jurisdiction to file complaint in respect of an offence should have a reasonably close nexus with the proceedings in court, so that it can satisfactorily consider by reference principally to its record the expediency of prosecuting the delinquent person.

(iv) The Court while embarking upon an enquiry under section 340 of the Code should not act as an investigating agency as it would be impracticable for the court to decide about the expediency of launching of prosecution in respect of forgeries committed earlier to the proceedings initiated in that court.

(v) If wider view is taken, the criminal liability can be evaded because the forgerer by filing a suit in other proceedings in courts can prolong the same to the extent he can manage, and claim protection under Section 195 of the Code.

(vi) The restricted view is more in consonance with the Scheme of the Code of Criminal Procedure to provide harmonious interpretation and will not defeat or frustrate any other relevant provisions of the Code."

It was further observed in the concluding paragraph 18 as under :

"18. The net result of the discussion is that Karnail Singh''s case is correctly decided and depicts the correct position of the 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 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 such a document is fabricated prior to its production or given in evidence."

Supreme Court in State of Karnataka v. Hemareddy and another, 1981 Cr.L.J. 1019, had an occasion to examine a question with respect to the offence of forgery and the provisions contained in Section 195 of the Code. It was observed as under :

"The Legislature could not have intended to extend the prohibition contained in Section 195(1), Criminal Procedure Code, to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party."

In Gopalakrishna Menon and another v. D. Raja Reddy and another, 1983 Cr.L.J. 1599, a similar question was again considered by the Supreme Court. It was held that the prosecution of the persons, who were alleged to have produced a forged money receipt in the civil Court, for offences punishable under Sections 467 and 471 read with Section 34, IPC, on the basis of a private complaint could not be sustainable in the absence of a complaint from the appropriate civil Court where the alleged fraudulent money receipt had been produced. Subclause (ii) of Section 195(1)(b) of the Code referred to the offence described in Section 463, IPC. Since Section 463, IPC, described the offence and Sections 467 and 468, IPC, made the offence of forgery punishable, it was held that Sections 467 and 468, IPC, were also covered under subclause (ii) of Section 195(1)(b) of the Code.

The Full Bench of the Allahabad High Court in Ram Khelwan v. State of U.P., 1998(3) Recent CR (Cri.) 55 , has also considered a similar matter in great detail. Reference to various judgments of the Supreme Court as well as to the Full Bench decision of this Court in the case of Harbans Singh and others v. The State of Punjab (supra) was made. It was held that subclause (ii) of Section 195(1)(b) of the Code is limited in its operation only to the offences mentioned therein if committed in regard to a document produced or given in evidence in such proceedings. After examining the provisions as contained in the Code of Criminal Procedure, 1898, it was further held that the amendment made in the existing Code had enlarged the application of protection not only to the parties to the proceedings but even to the witnesses also. It was also observed that the offence covered by Section 471, IPC, from its very nature must be committed in the proceeding itself by a party thereto. While considering the offence of forgery under Section 467, IPC, it was observed that it was an offence about which the Court alone, in which the document in question was produced or given in evidence in a proceeding, is clothed with the right to complain. The commission of the offence must have a reasonably close nexus with the proceedings in that Court. It was further held that the Legislature could not have intended to extend the prohibition contained in Section 195(1)(c) of the old Code to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party. A person could be tried for an offence under Section 467, IPC, in the absence of a complaint by the Court unless it is shown by evidence that the document in question was forged by a party to the earlier proceedings in his character as such party after the suit had been instituted. In paragraph 31, it was observed as under :

"Accordingly our conclusion is that Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973 is limited in its operation only to the offences mentioned in this section if such offence is with regard to a document produced or given in evidence in such proceedings and when that document is still in custody of the Court. It has no application to a case in which such a document is fabricated long before its production or its being tendered in evidence.

On considering the controversy in the light of the aforesaid decision, it is clear that no cognizance could be taken by a criminal Court in respect of the offence punishable under Section 471, IPC (using as genuine a forged document), except on a complaint in writing by the civil Court in which the Will, in question, was used as a genuine document. As regards the offence of forgery under Section 467, IPC, it may be noticed that the Will, in question, was said to have been executed in the year 1964. The civil suits had been filed in the Court of Sub Judge, Kurukshetra in the year 1985. Thus, the alleged offence of forgery in respect of the Will had been committed much earlier to the institution of the suits and the Will was produced and tendered in evidence after the institution of the suits in those proceedings before the civil Court. Thus, trial of the offence under Sections 467, IPC, allegedly having been committed in respect of the Will much before it was produced in evidence in the proceedings before the civil Court, cannot be said to be invalid in the absence of a complaint in writing by the civil Court.

Offences under Sections 218 and 420, IPC, are not covered under any of the subclauses of Section 195(1)(b) of the Code and, thus, the challenge to the trial in respect of those two offences is also unfounded as the bar contained in those subclauses is not attracted.

The offence under Section 120B, IPC, is covered under subclause (iii) of Section 195(1)(b) of the Code. Bar to prosecution for an offence under Section 120B, IPC, is applicable where criminal conspiracy takes place to commit any of the offences specified in any of the clauses of Section 195(1). Such bar would not apply if criminal conspiracy takes place to commit any other offence or where the bar to prosecution for any substantive offence mentioned in any of the clause of Section 195(1) is itself not attracted. As has been stated earlier, offences under Sections 218 and 420, IPC, are not the offences mentioned in Section 195(1) and bar to prosecution for the offence under Section 467, IPC, is not applicable in this case. Prosecution for the offence under Section 129B, IPC, shall, therefore, proceed along with the trial in respect of the offences under Sections 218, 420 and 467, IPC.

In view of the above discussion, prosecution in respect of the offence under Section 471, IPC, is held to be vitiated in the absence of a complaint in writing by the civil Court in which the document (the Will) was used by a party as a genuine document. Prosecution in respect of the offences punishable under Sections 218, 420, 467 and 120B IPC, shall proceed.

The petition is disposed of in the above terms.