Ramsewak and Others vs Narendra Kumar and Others

T.S. Doabia, J.

In this petition preferred under Article 227 of the Constitution of India, the revisional order passed by the Sessions Judge. Dalia, whereby the petitioners have been summoned to face trial under sections 120-B, 467. and 468 of the Indian Penal code is being challenged. The brief facts out of which this petition arises be noticed as under.

The petitioners were ordered to be summoned with a view to face trial under sections 120-B, 467, 468 and 471 of the Indian Penal Code. This order was passed on a complaint filed by one Narendra Kumar in the Court of Chief Judicial Magistrate. Datia.

The petitioners preferred a revision petition and contended that this was a case to which the provisions of section 195 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') would be attracted and that the cognizance can be taken only on the basis of a complaint by the concerned Tahsildar. On this plea, having been raised in the Court of Sessions, the Court of Sessions came to the conclusion that the complaint in so far as it refers to section 471 of the Indian Penal Code could not be tried but with regard to other offences, the trial would go on. It is this aspect of the matter which is being challenged in this Court by preferring a petition under Article 227 of the Constitution of India. What is sought to be contended is that even with regard to offences 120-B, 467 and 468 of the Indian Penal Code, no prosecution can be continued unless and untill procedure indicated in Section 195 of the Code is followed.

I am of the view that there is merit in the contention of the counsel for the petitioners.

In Dr. S.L. Goswami Vs. The High Court of Madhya Pradesh at Jabalpur, , the scope of section 195 (1) (c) of the Code was considered and it was observed :

The first requirement is that the offence should be one as described in Section 463 or punishable under S.471, Section 475 or Section 476 of the Indian Penal Code. It was submitted that as Section 466 Indian Penal Code, is not one of the Sections mentioned, the offence will not fall under the provisions of Section 195(1) (e) and the Section will not apply." It was concluded.

We have given our careful consideration to the view expressed in the above decision that Section 466 of the Indian Penal Code is not covered by clause (c) of Section 195 (1) of the Criminal Procedure Code. We regret our inability to subscribe to this view. At p. 785 (of SCR): (at p. 1713 of AIR) of the Report the Court took the view that though Section 465 of the Indian Penal Code is not specifically mentioned in Section 195 (1) (c) of the Criminal Procedure Code, as the offence u/s 463, Indian Penal Code is dealt with in Section 465, Indian Penal Code, clause (c) of Section 195 (1) will not operate as a bar the Magistrate taking cognizance of the offence. The Court, though Sec. 465 is not specifically mentioned in Section 195 (1) (c), held that Section 195 (1) (c) is applicable as an offence u/s 463 is dealt with u/s 465 IPC. On the same reasoning S.466 should also be held to come within the purview of S. 195 (1) (c) Cr. P. C. as the offence u/s 463 is dealt with in Section 466.

The matter was again considered by the Supreme Court in the case of Gopalakrishna Menon and Another Vs. D. Raja Reddy and Another, and the principle of law which was enunciated in Dr. S. L. Goswami''s case (supra) was reiterated in the following words :

The purpose of our extra citing the two sections of the Penal Code is to show that the offence which is made punishable under S.467 of the Penal Code is in respect of an offence described in S.463. Once it is accepted that S.463 defines forgery and S.467 punishes forgery of a particular category, the provision in S. 195 (1) (b) (ii) of the Code would immediately be attracted and on the basis that the offence punishable under S.467 of the Penal Code is ah offence described in S.463, in the absence of a complaint by the Court the prosecution would not be maintainable. We have no doubt in our mind that the High Court took a wrong view of the matter.

The above two decisions of the Supreme Court were considered by this Court in Rajendra Singh Vs. Dr. Surendra Singh, and it was concluded:

Section 195 (1) (b) (ii) of the Code speaks of any of offences described in Section 463, or punishable u/s 471. Section 475 or Section 476 IPC, when such an offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. Chapter XVIII of IPC deals with the offences relating to documents and to property marks. What constitutes forgery, has been very elaborately defined in Section 463 IPC which has been referred in a comprehensive sense u/s. 195 (1) (b) (ii) of the Code, so as to include cognate sections and to embrace all species of forgery, and Section 467 is one of them. See Dr. S. L. Goswami v. M. P. High Court, AIR 1969 SC 437. 1978 Cri. L. J. 193

In view of the above, there is merit in the contention of the counsel for the petitioners. Even for an offence referred to above under the Indian Penal Code, the cognizance could not have been taken on the basis of a private complaint. The provisions of Section 195 of the Code would be attracted. This petition is allowed. The order passed by the Sessions Judge permitting the trial to go on and the trial Magistrate permitting the prosecution is quashed.