Narvdeshwar Tiwari and Another vs State of U.P. and Another

R.A. Misra, J.—This petition u/s 482 Code of Criminal Procedure has been moved with the prayer to quash the complaint and the summoning order in Case No. 3003 of 80 Vibhuti Lal v. Narvdeshwar and Ors. pending in the Court of Sri. P.N. Roy, Special Judicial Magistrate, Gorakhpur.

Sri. Vibhuti Lal opposite party No. 2 is Pradhan of village Senduria P.S. Mahrajganj, District Gorakhpur. The Petitioners Narvdeshwar Tiwari and Virendra Das are also residents of the same village. Subrati a tenure-holder of the same village wanted to sell his holding. He could not sell the holding except with the permission in writing of Settlement Officer (Consolidation) as provided u/s 5(2)(ii) of the U.P. Consolidation of Holdings Act. He therefore moved an application before the Settlement Officer (Consolidation) for permission to transfer his holding by way of sale. He, it so appears, was required to produce a Caste Certificate for obtaining the permission. He produced a Caste Certificate purporting to have been issued by Sri. Vibhuti Lal Srivastava, Pradhan of the village and the Settlement Officer (Consolidation) therefore granted the permission and Subrati executed a sale deed. Vibhuti Lal Srivastava opposite party No. 2 has filed a complaint in the Court of Special Judicial Magistrate Gorakhpur against Petitioners and two others to wit Subrati and Santoo Dube under Sections 419/420/468/467/471 IPC with the allegation that the accused named in the complaint have after entering into a conspiracy, forged the Caste Certificate and obtained the sale deed. He further alleged in the complaint that the seal of Gram Pradhan as well as his signatures, both have been forged and on the basis of the forged document filed by the accused, permission was obtained by misguiding the Court. It so appears that after examining one witness the learned Magistrate summoned the accused and hence this petition.

It has been argued by learned Counsel for the Petitioner that in view of the provisions of Section 195 Code of Criminal Procedure the Court below could not take cognizance on a complaint filed by a private person Sri. Vibhuti Lal Srivastava. The key question which arises for consideration is whether the Court below cannot take cognizance of the offences complained of by a private person Sri. Vibhuti Lal in view of the provisions of Section 195 Code of Criminal Procedure. The relevant portion of Section 195(1)(b)(ii) may be extracted thus:

Section 195(1)-No Court shall take cognizance-

(b)(ii) of any offence described in Section 463 or punishable under Sections 471, 475 or 476 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 abatement of, any offence specified in Sub-clause (i) or Sub-clause (ii),

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

It is clear from the facts stated above that the complaint has been filed by Sri. Vibhuti Lal Srivastava with the allegation that the Petitioners along with two others have entered into a conspiracy in forging the Caste Certificate wherein the seal and signatures of the complainant have been forged. The complaint further says that the accused including the Petitioners obtained the sale deed after producing the forged Caste Certificate in the Court and obtained on the basis thereof permission in writing of the Settlement Officer (Consolidation). As provided u/s 195(1)(b)(ii)(iii) no Court can take cognizance of any offence described in Section 463 or punishable under Sections 471/475 and 476 except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. Again no Court can take cognizance of any criminal conspiracy to commit or attempt to commit or the abatement of aforesaid offences except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. Section 463 IPC defines forgery and Section 195(1)(b)(ii) prohibits a Magistrate from taking cognizance of any offence described in Section 463 except on the complaint in writing of that Court. Section 467 provides punishment for forgery of valuable security, will etc. and Section 468 lays down punishment for forgery for purposes of cheating. Thus Section 467 and 468 provide punishment for cheating of the kind mentioned therein. As mentioned above Section 195(1)(b)(ii) prohibits a Magistrate from taking cognizance of any offence described in Section 463 and in view of the aforesaid discussion Sections 467 and 468 are offences of the nature described in Section 463. So the Magistrate could not take cognizance of the offences under Sections 467, 468 and 471 on the complaint of Vibhuti Lal Srivastava opposite party No. 2. The Court could take cognizance on the complaint filed by Settlement Officer (Consolidation) or of some other Court to which the Court of Settlement Officer Consolidation is subordinate. I therefore agree with the learned Counsel for the Petitioner that the complaint filed by Vibhuti Prasad Srivastava against Petitioners under Sections 467, 468 and 471 is not maintainable and the Magistrate could not take cognizance on his complaint in view of the provisions of Section 195(1)(b)(ii)(iii). The Court below has grievously erred in taking cognizance of these offences against the Petitioners and summoning them on a complaint of Sri. Vibhuti Lai Srivastava. The facts stated in the complaint do not in the least make out separate and distinct offences against the Petitioners u/s 419 and 420 IPC. As observed in State of U.P. v. Suresh Chandra Srivastava 1984 ACrR 428 the law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, then Section 195 will affect only the offences mentioned therein, unless such offences form an integral part so as to amount to offences committed as a part of the same transaction in which case the other offences also would fall within the ambit of Section 195 of the Code. In the instant case from the facts stated in the complaint no separate and distinct offence under Sections 419/420 IPC is made out against the Petitioner.

In the result the entire complaint along with the order of summoning passed by Court below shall be quashed.

The petition is allowed. The entire proceedings in Criminal Case No. 3003 of 80 Vibhuti Lal v. Narvdeshwar and Ors. arising out of the complaint filed by Sri. Vibhuti Lai pending in the Court of Sri. P.N. Roy, Special Judicial Magistrate Gorakhpur, along with the order thereon passed by the learned Magistrate summoning the accused is hereby quashed.