Smt. Chhohadi Devi and Another vs State of U.P. and Others

S.K. Phaujdar, J.—Through the present application, the powers of this Court u/s 482, Cr. P.C. have been invoked to set aside an order dated 23.4.96 recorded by the Vth Addl. Sessions Judge, Gorakhpur, in Crl. Revision No. 158 of 1995, with a further prayer to stay the proceedings in Complaint Case No. 6920 of 1993: State v. Umesh and Ors. now pending before the Court of the C.J.M., Gorakhpur. On presentation of the instant application, an interim order was recorded suspending the operation of the impugned order dated 23.4.96 recorded by the Addl. Sessions Judge, Gorakhpur. The Respondents were noticed. A counter-affidavit was filed on behalf of Respondent No. 3, Smt. Subhagi. A rejoinder-affidavit was also placed on record on behalf of the applicants.

Respondent No. 3 filed Case No. 6920 of 1993 for offences under Sections 419, 420, 467, 468 and 120B, I.P.C., relating to P.S. Cantt. district Gorakhpur on the ground that in Case No. 2 of 1993 pending before the S.D.M., Bansgaon, Gorakhpur, the present two applicants had produced another woman as the present Respondent No. 3 posing her to be Smt. Subhagi Devi and placed a compromise application with her signature and tried to get hold of the lands of the Respondent No. 3 through illegal means. When this fact was brought to the notice of the said S.D.M., the latter was of the view that the action of the present Respondent No. 3 was suspicious and hence he forwarded the matter to the C.J.M. for further action. This order was passed by the S.D.M. on 23.8.93. On receipt of the matter from the S.D.M., the C.J.M. opened the records of the Case No. 6920 of 1993: State v. Umesh and others, and recorded an order dated 12.7.95 to the effect that there should have been a proper complaint u/s 195, Cr. P.C. and a mere forwarding of the materials to the C.J.M. by the S.D.M. was not contemplated under the law. Accordingly, he was of the view that no cognizance could be taken and the entire matter was not maintainable.

This order dated 12.7.1995 was challenged by Smt. Subhagi Devi in the aforesaid Crl. Revision No. 158 of 1995 which was heard by the Vth Addl. Sessions Judge, Gorakhpur. The learned Addl. Sessions Judge dealt with the provisions of Section 195(1) as also Section 340, Cr. P.C. and was of the view that the order dated 12.7.95 could not be sustained. The Sessions Judge was of the view that the report of the S.D.M., Bansgaon, together with the complaint of Smt. Subhagi, should have been read together as the complaint and the C.J.M. should have proceeded according to law. This order has been challenged by the present two applicants on the ground that there had been no proper complaint u/s 195 read with Section 340, Cr. P.C. and the C.J.M. had recorded the right order and the Addl. Sessions Judge was wrong to direct consideration of the report of the S.D.M. and the report of Smt. Subhagi Devi together.

In the counter-affidavit, it was indicated that in pursuance to the revisional order dated 23.4.1996, the C.J.M., Gorakhpur, had already recorded a consequential order dated 15.5.96 summoning the present applicants and against that summoning order, the applicants had preferred another Criminal Revision No. 146 of 1996 before the v. Ith Addl. Sessions Judge, Gorakhpur, and the same was dismissed on 25.1.1997. It was indicated that this application u/s 482, Cr. P.C. was, therefore, not maintainable. The order in Crl. Revision No. 146 of 1996 dated 25.1.97 is an annexure to this counter-affidavit. It was held herein that the order of summoning was but an interlocutory order not open to revision and the applicant should have agitated the matter u/s 204, Cr. P.C. before the trial court itself, as observed in the case of Kailash Chowdhury. The order that was challenged in Crl. Revision No. 146 of 1996 was the consequential order and it was not dismissed on merits. It was dismissed on the procedural aspect only. The dismissal of the revisional order or the right of the applicants to challenge the summoning order before the trial court itself may not debar them from challenging the validity of the order of the Vth Addl. Session Judge in giving a direction to the C.J.M. to act on the reference of the S.D.M. and the report of Smt. Subhagi Devi. The present application is, therefore, maintainable, subject to the interpretation of Sections 195 and 340, Cr. P.C.

Section 195, Cr. P.C. speaks of prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. It requires that no Court shall take cognizance of any offence described in Section 463 or punishable under Sections 471, 475 or 476 of the I.P.C. 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 except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. The plain reading of the complaint of Smt. Subhagi indicates that the forgery and cheating, if any, was committed in respect of certain vakalatnama and compromise petition filed before the S.D.M., Bansgaon, in a case that was being heard by him. Prima facie, therefore, it was an offence described in Section 463, I.P.C., that is of forgery and making a false document, in respect of a document produced in a proceeding in a Court and cognizance could have been taken only on the complaint in writing of that Court, i.e., the S.D.M. or some other Court to which the S.D.M. was subordinate. Section 340, Cr. P.C. finds place in Chapter XXVI of the Cr. P.C. which makes provisions as to offences affecting the administration of justice and Section 340 lays down the procedure in cases of offences mentioned in Section 195, Cr. P.C. Under this section, when upon an application made to a Court, it is of opinion that it is in the interest of justice that an enquiry should be made into an offence referred in Clause (b) of Sub-section (1) of Section 195, Cr. P.C. which appears to have been committed in relation to a proceeding in that Court, the Court may make a preliminary enquiry and record a finding to that effect and then make a complaint thereof in writing and only thereafter send it to a Magistrate of Ist Class having jurisdiction. In the instant case, the alleged forgery, as stated above, was committed in respect of a vakalatnama and a compromise petition before the S.D.M., and this fact was brought to the notice of the S.D.M. He should have, u/s 340, Cr. P.C., made a preliminary enquiry to satisfy himself that the offence was committed and, thereafter, he should have made a complaint. There has been, however, no preliminary enquiry nor has there been any complaint by the S.D.M. There was only a reference by him to the C.J.M. It is worth note that there was no complaint to the C.J.M. by Smt. Subhagi Devi.

The Vth Addl. Sessions Judge while disposing of the Criminal Revision No. 158 of 1995 had before him the facts that Smt. Subhagi had filed before him an application for action u/s 195 read with Section 340(1), Cr. P.C. and the S.D.M. had perused the records and was prima facie satisfied that the action of the applicants was suspicious. Accordingly, he forwarded the matter to the C.J.M. The revisional court had reasoned that the reference had all the elements of a complaint as it was in writing and was done by the Magistrate concerned with a view that an action under the Code of Criminal Procedure would be taken by the C.J.M. in the matter and, as such, the reference amounted to a complaint. On the basis of this interpretation of a complaint, the revisional court was of the view that the reference was to be read along with the report of Smt. Subhagi Devi.

Section 2(d) of the Code defines the word ''complaint'' which means an allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence. The report did not make any allegation to the C.J.M. about commission of an offence. It only kept on record a suspicion expressed by the Magistrate. Section 340, Cr. P.C. requires the Magistrate to make a preliminary enquiry and to come to a finding on the prima facie truth of the allegations and then only he could lodge a complaint. Even under the most liberal interpretation of the term ''complaint'', a mere reference and, that too, expressing a suspicion only could not be read as a complaint and, more so, no other report (in this case that of Smt. Subhagi Devi) could not have been tagged to give the reference the shape of a complaint.

The purpose of defining the term ''complaint'' is very clear as a different procedure for taking cognizance on complaint is indicated in the Cr. P.C. and a different procedure for trial of a criminal case upon a complaint is also indicated. If it was a complaint by the S.D.M., he should be in the position of a complainant, but, in fact, Smt. Subhagi Devi was occupying the position of a complainant if at all cognizance as a consequence of the revisional order could be supported. This violates the policy enunciated in Section 195, Cr. P.C. Under this section, only upon a complaint by the concerned Court, an offence indicated therein could be taken cognizance of. This legislation has a purpose behind it. If a particular document is before a Court, then it should be left to that Court only to make a complaint regarding forgery of that document, otherwise there could be a conflict of decision regarding the nature of document.

The order of the C.J.M. appears to have been rightly passed in the light of the above discussions and the revisional order dated 23.4.96 was certainly wrong in allowing the reference to be read as a complaint. The revisional order and all consequential orders are, therefore, quashed. The matter goes back to the S.D.M., Bansgaon, who would hold a preliminary enquiry as required u/s 340, Cr. P.C. into the allegations, made by Smt. Subhagi Devi, of forgery, fraud and cheating by the present applicants. If after preliminary enquiry the S.D.M., Bansgaon, is prima facie of the opinion that a complaint should be made, he should lodge a formal complaint indicating the facts which constitute the offence indicating the names of the persons responsible for such an offence and only upon such complaint, an action can be taken by the C.J.M.

In view of the above, the present application stands disposed of with the above observation.