Ram Kishun Yadav vs State of U.P. and Another

Vishnu Chandra Gupta, J.—This Criminal Misc. Case u/s 482, Criminal Procedure Code (for short ''Cr.P.C.'') has been filed to quash the proceeding of case No. 4934 of 2009, arising out of Case Crime No. 4234/08, u/s 471/467/468/419/420 of Indian Penal Code (for short ''I.P.C.''). P.S., Kotwali Nagar. Distt.-Faizabad, pending in the court of Chief Judicial Magistrate, Faizabad. In this petition the cognizance taken by the court in pursuance of the police report has been challenged in the light of Section 195, Cr.P.C. on the ground that in this case forgery committed in respect of a document produced in the judicial proceedings. Therefore, cognizance taken by the court on the basis of police report would be void. Learned counsel for the petitioner in support of his contention relied upon the Judgment of the Apex Court passed in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, .

On the contrary learned A.G.A. submitted that case does not fall within the ambit of Section 195, Cr.P.C. because the forgery committed in respect of such document which is not produced by either party to the proceedings. On fact Iqbal Singh Marwah''s case (supra) will not apply.

In the light of the submissions raised by the counsels for the parties, the facts of this case required to be scanned.

The first information report (for short ''F.I.R.'') has been lodged by one Chandrika Prasad reader of Court of Assistant Record Officer, Faizabad, in Police Station-Kotwali city that a case is pending before the court having case No. 50/59/85/91/139/130/146/166/236/410 of village Manjha Barhatta, Pargana, Haweli Oudh Tahsil and District-Faizabad. This case was Mahanth Ram Garib Das v. Kamal Das, was in respect of Section 54 of U.P. Land Revenue Act. In the order sheet of this case dated 28.11.1987 (Paper No. 4Aa) and order sheet dated 7.8.1987 (Paper No. 3Aa), the forged thumb Impression of Kamal Das were affixed by the advocate during the course of Inspection of file. The Assistant Record Officer by its order dated 1.10.2008 directed to lodged the F.I.R. of this incident. It was also mentioned in the first Information report that person who had already died was shown to be alive before the court. The benefit of this act should go to one Ram Kishun Yadav (Petitioner) S/O Jai Sri Yadav, presently R/O 566, Audhpuri Colony, Amani Ganj, Kotwali City, Faizabad. The F.I.R. Accordingly lodged against him on 10.10.2008. The investigation was conducted and charge-sheet was filed against Ram Kishor Yadav u/s 419/420/467/468/471, I.P.C. From the perusal of the record of investigation it reveals that forged thumb Impressions of deceased Kamal Das were put on the order-sheets with intent to get an advantage to show that Kamal Das was alive on the date fixed in this case on 7.8.1987 and 28.11.1987. Hence, offence against the petitioner is made out.

Whether case falls within the ambit of Section 195, Cr.P.C. or not, it would be necessary to look into the provisions of Section 195 of the Cr.P.C., which are re-produced herein below:

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)(i) If any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) Of any abetment of, attempt to commit, such offence, or

(iii) Of any criminal conspiracy to commit, such offence.

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 sections 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 of some other court to which that court is subordinate.

except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise 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:

Provided that no such withdrawal shall be ordered if the trial in the court of first instance has been concluded.

(3) In Clause (b) of subsection (1), the term "court" means a civil, revenue or criminal court, and includes a Tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a court for the purposes of this section.

(4) For the purposes of Clause (b) of sub-section (1), a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from appeal able decrees or sentences of such former court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate:

Provided that--

(a) Where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed subordinate;

(b) Where appeals lie to a civil and to revenue court, such court shall be deemed to be subordinate to the civil or revenue court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

From perusal of Section 195(1)(b)(ii) reveals that the court could take cognizance of any offence described in Section 463, or punishable 471, 475 or 476, I.P.C. when such offence is alleged to have been committed in respect of document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court or by such officer of some other Court of the as that court may authorise in writing in this behalf, or the Court to which that court is subordinate.

Learned counsel for the petitioner submits that the case is covered u/s 195(1)(b)(ii), Cr.P.C. because it relates to a document in the record of the case. Hence, in view of the Iqbal Singh Marwah''s case cognizance could only be taken on complaint filed by the court or by any other authorized person and not on the basis of, police report.

On the contrary learned A.G.A. submits that this case does not fall within the ambit of Section 195(1)(b)(ii), Cr.P.C. because the alleged act of accused was in relation to a document which has not been produced by any of the party nor the alleged act said to have been committed by any of the party to the proceedings.

Having considered the rival submissions of counsels for the parties and going through the record it is necessary to look into the factual matrix of this case.

Admittedly the documents purported to have been tempered with are nothing but the order-sheets of proceedings before a Revenue Authority. The alleged tempering is not in respect of document produced or given in evidence by any party to the proceeding in the aforesaid proceedings.

To attract the provisions of Section 195, Cr.P.C. following are the requirements:

(i) If any offence is committed for contempt of lawful authority of public servants as covered under Sections 172 to 188, I.P.C. (both Inclusive), Section 195(1)(a) will attract.

(ii) If prosecution relates to an offence against public justice as included in Sections 193 to 196 (both inclusive) 199, 200, 205 to 211 (both inclusive) and 228 I.P.C., Section 195(1)(b)(i) will attract.

(iii) If prosecution for the offence relating to a document produced by any party to the proceeding given in evidence in a court as covered in Sections 463, 471. 475, 476 I.P.C. Section 195(1)(b)(ii) will attract.

In all the aforesaid three contingencies, no court could take cognizance except on the complaint in writing of the public servant concerned or any authority to which he is administratively subordinate or by Court or by such officer of some other Court as that court may authorise in writing in this behalf, or the Court to which that court is subordinate.

So far as the procedure of complaint is concerned, Section 340 of Cr.P.C. is also relevant, which is reproduced herein below:

Procedure in case mentioned in Section 195.--(1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be. In respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary Inquiry, if any, as it thinks necessary,--

(a) Record a finding to that effect;

(b) Make a complaint thereof in writing;

(c) Send it to a Magistrate of the first class having jurisdiction;

(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and

(e) Bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) In respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed,--

(a) where the court making the complaint is a High Court, by such officer of the court as the court may appoint;

(b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf.]

(4) In this section, "court" has the same meaning as in Section 195.

Section 343 of Cr.P.C. relating to manner of taking cognizance by the Magistrate in such type of case, Section 343 is also reproduced herein below:

Procedure of Magistrate taking Cognizance.--(1) A Magistrate to whom a complaint is made u/s 340 or Section 341 shall, notwithstanding anything contained in Chapter XV proceed, as far as may be, to deal with the case as if it were instituted on a police report.

(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.

Section 345 of the Criminal Procedure Code deals with the cases falling Clause (b) of sub-clause (1) of Section 195, Cr.P.C. Section 345 is also relevant in the light of Section 195, Section 345, Cr.P.C. provides procedure in certain cases of contempt, the provision of Section 345, Cr.P.C. is also reproduced herein below:

Procedure in certain cases of contempt.--(1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of any civil, criminal or revenue court, the court may cause the offender to be detained in custody and may at any time before the rising of the court on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence the offender to fine not exceeding two hundred rupees, and in default of payment of fine, to simple Imprisonment for a term which may extend to one month, unless such fine be sooner paid.

(2) In every such case the court shall record the facts constituting the offence, with the statement (if any) made by the offender as well as the finding and sentence.

(3) If the offence is u/s 228 of the Indian Penal Code (45 of 1860), the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or Insult.

The investigation is the statutory power of the police under Cr.P.C. These powers are not in any way controlled or circumscribed by Section 195, Cr.P.C. as held in State of Punjab Vs. Raj Singh and Another, .

It is also to be noticed that at the stage of investigation Section 195, Cr.P.C. has no application. Once investigation is completed then embargo in Section 195, Cr.P.C. comes into play and court would not be competent to take cognizance. If offence falls within the ambit of Section 195, Cr.P.C. as held in M. Narayandas Vs. State of Karnataka and Others, .

In Iqbal Singh Marwaha''s case (supra) a constitution Bench of Hon''ble Supreme Court dealt with the case falling u/s 195(1)(b)(ii) and held that if forgery in respect of the document produced in the court has been committed before filing of the documents, the same would be out of the purview of Section 195, Cr.P.C.

The present case is not in respect of a document produced in any proceedings in a court by any party to the proceeding, so Iqbal Singh Marwaha''s case (Supra) will not extend any help to the petitioner.

For attracting the provisions Section 195 it is indispensable that offence committed must in some manner have affected the proceedings or had been designed to affect them or come to the light in course of them, but an offence committed after the close is wholly outside the scope of provision of Section 195, as held in Dr. S.L. Goswami Vs. The High Court of Madhya Pradesh at Jabalpur, .

The next requirement to attract Section 195 is that the proceedings must be before a court. The proceedings purported to be u/s 54 of the U.P. Land Revenue Act are related with revising the map and record of Revenue Land. In Lal Bihari Prasad and Another Vs. State of Bihar, , it has been held that Deputy Collector incharge of Land Reforms or Additional Collector or Additional Commissioner hearing mutation dispute is not a court within the meaning of Section 195, Cr.P.C. However, in Smt. Maharaji and Others Vs. Rama Shanker and Another, , it was held that Tehsildar conducting mutation proceedings u/s 34 of U.P. Land Revenue Act, 1901 is a Revenue Court within the meaning of Section 195, Cr.P.C.

The proceedings u/s 54 of U.P.L.R. Act relating to revision of map and record of revenue land are conducted by Record Officer in view of Section 54(1) of U.P.L.R. Act. Section 4(8) defines the Revenue Court. Section 4(8) of U.P. Land Revenue Act, 1901 is extracted below:

Definitions.--In this Act unless there be something repugnant in the subject or context--

(8) "Revenue Court" means all or any of the following authorities (that is to say), the Board and all members thereof, Commissioners, Additional Commissioners. Collectors, Additional Collectors, Assistant Collectors, Settlement Officers, Record Officers, and Assistant Record Officers and Tehsildars;

Hence, Record Officer conducting proceeding u/s 54 of U.P.L.R. Act certainly be categorized as court proceedings and the Revenue Officer dealing with those proceedings shall certainly fall within the ambit of "Court" as defined in Section 195(3) of Cr.P.C.

In order to attract an operation of the Section 195, the offence should be alleged to have been committed by the party to the proceedings in his character as a party, i.e., after having become a party to the proceedings, as held in Raghunath and Others Vs. State of U.P. and Others, and in Mohan Lal and Others Vs. The State of Rajasthan and Another, .

The question, whether in the present case Section 195, Cr.P.C. will create a bar in taking cognizance by the Magistrate? is to be considered in the light of the fact of the case. The entire record is not before this Court. What offence has been committed in the facts and circumstances of this case or whether the offence for which the cognizance has been taken by the Magistrate are made out or not is also to be seen in the light of fact of this case.

From perusal of the record available here, it appears from the allegations made in the F.I.R. that some lawyer tempered with the order-sheets of the case. However, the charge-sheet has been filed against the present petitioner Ram Kishun Yadav. In case, the case falls u/s 195(1)(b)(ii) or (iii), Cr.P.C. then it would be incumbent upon the court to see whether the person committed offence by tempering the order-sheet was party to those proceedings, in respect of which such forgery has been committed.

In case the matter falls within the ambit of Section 195(1)(a)(i) or 195(1)(b)(i) in that event too court has to decide whether any offence punishable under Sections 172 to 188 (both inclusive), Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and Section 228, I.P.C. are made out from the material available in the police diary.

It is clear that if the case falls within the ambit of either Section 195(1)(a) or 195(1)(b), cognizance taken by Magistrate would be bad because the same would be against the procedure established by law as contained in Section 195 read-with Sections 340 and 343, Cr.P.C.

In view of the above facts and circumstances of the case, this Court is of the firm view that matter should be sent back to the trial court to give specific finding with reasons on the basis of material available on police diary whether this case is covered u/s 195, Cr.P.C. or not? In case, Trial Court comes to the conclusion that case does not falls within the ambit of Section 195, Cr.P.C. only in that event, that court shall proceed with the trial.

In view of the above it is provided that till the trial court takes decision on the aforesaid issue, no coercive steps shall be taken against the petitioner. With this observation, petition is finally disposed of.