Nekasey Lal vs Kedar Singh and Others

M. Wahajuddin, J.—By this application u/s 482 Code of Criminal Procedure Nekasey Lal and others prayed that the order dated 25-10-1980 of the v. Ith Additional Sessions Judge, Mainpuri, be set aside and criminal proceedings in criminal complaint No. 302 of 1979 pending in the court of Chief Judicial Magistrate, Mainpuri, (Surendra Pal Singh v. Nekasey Lal and Ors. criminal complaint No. 302 of 1979) be quashed.

It would appear that a complaint was filed by Surendra Pal Singh against Nekasey Lal and others under Sections 467, 419 and 420 Indian Penal Code and the Chief Judicial Magistrate vide its order dated 3-6-1980 (Annexure 1) upheld the plea of the applicants that the complaint was barred by Section 195(b)(ii) and (iii) Code of Criminal Procedure but the v. Ith Additional Sessions Judge, Mainpuri, allowed revision No. 76 of 1980 by an order dated 25-10-1980 and sent back the case to the court of Chief Judicial Magistrate, Mainpuri for appearance of the accused there vide his judgment (Annexure II).

It is submitted that as the very sale deed, to which the aforesaid complaint relates, which is said to have been forged and to have been got falsely prepared was produced in the mutation proceedings in the court of Tahsildar, Bhongaon on 24-6-1977, a private complaint would not lie and is barred under the aforesaid provisions. The learned Additional Sessions Judge has repelled such argument mainly on the grounds that as the alleged impersonation for getting the sale deed executed by a false person and forging of the document was not committed by the Respondents in their capacity as party to the proceedings in mutation court and the act was done much before that, the bar of Section 195(ii) would not apply. The learned Sessions Judge in support of his view relied upon the case of Raghunath v. State of U.P., 1973 Supreme Court Criminal Ruling 270. In that case relying upon the case of Patel Laljibhai Somabhai v. State of Gujarat, it was observed that the view taken in the case of Kushal Pal Singh has been approved and according to that decision the words "to have been committed by a party to any proceeding in any Court in Section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceedings in his character as such party, that is, after having become a party to the proceeding.

Unfortunately the v. Ith Additional Sessions Judge, Mainpuri, overlooked one important factor. Earlier Supreme Court rulings are based upon the language and expression used in Section 195 Code of Criminal Procedure before the amendment introduced in the new Code of Criminal Procedure. Now the expression in Section 195(b)(ii) is ''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 change in the language and expression is important and goes to the root of the matter. Earlier the expression used was ''offence is alleged to have been committed by a party to any proceedings in any court in respect of a document produced or given in evidence in such proceedings.'' Now the words ''by a party to any proceeding in any court'' have been ommitted. The ingredient now is the production of the document or giving in evidence of the document in a proceeding in any court and not beyond that. The entire case law uptodate has been considered in Criminal Revision No. 1367 of 1980, Ram Pal Singh v. State of U.P. Criminal Revision No. 1367 of 1980decided on 23-10-1981 (D. B.)=1982 A. Cr.R. 2=1982 AWC 1. Revenue court is also a court as per Section 195(3). In the case of Ram Pal Singh (Supra) also the document in respect of which commsssion of an offence, described u/s 463 Indian Penal Code was alleged was filed before the court of Tahsildar in certain mutation proceedings and it was held that in view of the same the Magistrate was not competent to take cognizance of such an offence at the instance of a private party. The principles of law laid down in the aforesaid Division Bench case are at all force in this case.

If other offences are ancillary to the main offence of forgery, cognizance of other offence would also be barred. Section 195(1)(b)(ii) applies as bar to all offences described u/s 463 Indian Penal Code and Section 463 Indian Penal Code gives definition of forgery and when that is the position, cognizance of all such offences which are of the nature described in Section 463 Indian Penal Code would be barred. This view was taken in the case of Smt. Dano v. Shanker Lal 1973 AWR 532 as well as in the case of Ram Pal Singh (supra). The earlier Supreme Court view is also the same--See Basir-ul-huq and Others Vs. The State of West Bengal, . The offences under Sections 406, 467, 420, 419 and all similar offences are ancillary to the offences of forgery as defined u/s 463 Indian Penal Code . If charges of forgery fail all other charges would also fail. When that is the position, bar of Section 195(1)(b)(ii) is attracted in this case and the Magistrate could not take cognizance.

In the result, the application u/s 482 Code of Criminal Procedure is allowed and the judgment and order dated 25-10-1980 of the v. Ith Additional Sessions Judge, Mainpuri, (Annexure 1 to the petition) directing the Chief Judicial Magistrate to proceed with the complaint case is quashed and the order of the Chief Judicial Magistrate dated 30-6-1980 is restored and the criminal proceedings in criminal complaint No. 302 of 1979 pending in the Court of Chief Judicial Magistrate, Mainpuri is quashed.