Wazir Singh vs Kulwant Singh

R.L. Anand, J.

Wazir Singh and Gurmej Singh, petitioners have filed the present petition under Section 482 Cr.P.C. against Kulwant Singh son of Tarlok Singh for the quashment of the complaint dated 10.4.1994 Annexure P.1, summoning order dated 19.12.1994 Annexure P.2 and order dated 30.11.1996, Annexure P.4.

According to the petitioners Darshan Singh had executed a ''Will'' regarding his property in favour of the petitioners on 21.7.1969. The possession of the land mentioned in that ''Will'' was also delivered to the petitioners and after the death of said Darshan Singh which took place on 6.6.1970, the petitioners started cultivating the said land as owners. However, Gurcharan Kaur wife of Kulwant Singh filed a civil suit for possession in respect of that land in which the said will dated 21.7.1969 came up for adjudication. The suit of Gurcharan Kaur was decreed by the trial Court on 30.9.1976. The appeal was dismissed by learned Addl. District Judge, Amritsar on 29.2.1990 and the Regular Second Appeal was also dismissed by the High Court filed by the petitioner on 2.11.1993. The will executed by Darshan Singh was not believed by the courts. Thereafter, respondent Kulwant Singh filed a complaint against the petitioners and others under sections 420, 465, 467 and 120B IPC in the court of Judicial Magistrate Ist Class, Amritsar on 15.9.1994 complaining that the petitioners in conspiracy with each other and with other accused had forged the said will of Darshan Singh which will was also produced in the court by the petitioners during the trial of the Civil Suit and this will was forged by the petitioners and others intentionally in order to deprive Ms. Gurcharan Kaur of the property. The preliminary evidence in the shape of the statements was recorded and the learned Magistrate issued process against the petitioners and others vide order dated 19.12.1994. In pursuance of the process, the petitioners appeared before the Magistrate and moved an application on 4.6.1996 Annexure P.3 that the complaint was not maintainable and deserved to be dismissed. It was the specific stand of the petitioners that Kulwant Singh was not a party to the civil litigation and the complaint at his instance was barred under Section 195 Cr.P.C. Such a complaint could only be filed either by the trial court or by the appellate Court after complying with the provisions of Section 340 Cr.P.C. The learned Magistrate issued notice of this application to the respondents and vide orders dated 30.11.1996 dismissed the same on the plea that it was not competent on his part to review the summoning order passed by his predecessor. The complaint, summoning order dated 30.11.1996 and order dated 19.12.1994 are being challenged by the petitioners mainly on the ground that the very complaint filed by respondent Kulwant Singh is barred under Section 195 Cr.P.C. and that Kulwant Singh respondent had no locus standi to file the complaint as he was not a party to the civil suit.

Notice of this petition was given to the respondent. On 11.8.1997, the contesting respondent Kulwant Singh through his lawyer Mr. Premjit Singh Kalia, Advocate, made a statement before this court that he does not want to file the reply and he could argue the matter without filing the same. I am disposing of this petition with the assistance rendered by Mr. B.R. Gupta, Advocate appearing on behalf of the petitioners and Mr. Premjit Singh Kalia, Advocate, who put in appearance on behalf of the respondent.

Section 195 of the Code of Criminal Procedure lays down as follows :

"(1) No court shall take cognizance

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or

(ii) of any abetment of, attempt 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, 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 under section 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 subclause (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.

(2) Where a complaint has been made by a public servant under clause (a) of subsection (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 subsection (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable 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 to be subordinate;

(b) where appeals lie to a Civil and also to a 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 the above language I can summarise the intention of the Legislature as follows :

"No court shall take cognizance of any offence described in Section 463 or punishable under sections 471, 475 and 476 IPC when such offences relate to or have been committed in respect of a document produced or given in evidence in a proceeding in any court".

Now it has to be seen in order to adjudicate the controversy in hand that at what point of time the offence with respect to the will was committed by the petitioners. The case set up by the petitioners before the civil court was that Darshan Singh had executed a will in their favour. This will was found to be not genuine by the trial court, appellate court and in the second appeal. It is the case of the petitioners themselves in para No. 2 of the petition that on the basis of a will dated 21.7.1969 the possession of the land comprised in that will was also delivered to them and after the death of Darshan Singh which death took place on 6.6.1970. The learned counsel appearing on behalf of the petitioners Shri B.R. Gupta, submitted that since the offence of forgery was committed with respect to a document produced or given in evidence, in these circumstances the complaint filed by Kulwant Singh is prima facie barred under section 195 Cr.P.C. and it is the court itself which is competent to file a complaint or the respondent may file an application under section 340 Cr.P.C. before the court concerned and in that eventuality the court concerned was to make a preliminary investigation as required under section 340 Cr.P.C. and if the court feels that it is expedient to prosecute the petitioners and others for any offence, such complaint could be allowed only by the court itself or by any person authorised in that regard. In support of his contention, Shri Gupta is placing reliance on Surjit Singh and others v. Balbir Singh, 1996(3) JT 363 : 1996(3) RCR (Crl.) 240, and he drew my attention to para No. 11 of the judgment of the Hon''ble Supreme Court where the following ratio was laid down :

"It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the court or given in evidence, the bar of taking cognizance under section 195(1)(b)(ii) gets attracted and the criminal court is prohibited to take cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under section 340 of the Code by or on behalf of the court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offences covered thereunder".

Now it has to be seen under what circumstances the will was forged by the petitioners, and at what point of time the offence with respect to the document was committed by the petitioners. If the offence has been committed prior in time to the production of the document in civil court, then in the opinion of this court, the provisions of Section 195 Cr.P.C. shall not be attracted. As I have stated above that the petitioners themselves allege that on the basis of the will which was declared forged subsequently they got the possession of the land covered under the will belonging to Smt. Gurcharan Kaur. The things do not rest here. This very will which was prepared by Khusi Ram and in connivance with Sarvshri Virsa Singh, Bharpur Singh and Tarlok Singh who put their signatures on it fully knowing well that it was forged. Then the will was got registered in the office of the SubRegistrar after the death of Darshan Singh. Meaning thereby that will was forged much prior in time. It was acted upon by the petitioners when they got the possession of the land covered under the will and knowing fully well that this will is forged will produced before the office of the Sub Registrar for its registration. Thus it cannot be said that the will for the first time was produced before the civil court in order to derive benefit. The bar under section 195(1)(b)(ii) will apply 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. Here is a case on total different footings. The offence was committed prior in time to the production of the document itself.

In Mahadev Bapuji Mahajan (dead) v. State of Maharashtra, 1994(2) RCR 673, the Hon''ble Supreme Court was pleased to lay down that when the offence of forging documents was committed before start of proceedings before court, the complaint by court before which forged documents were produced is not necessary. The following observations can be quoted with approval :

"Regarding the offences committed before the start of the proceedings, the High Court, in our view, has rightly held that no complaint is necessary by the court concerned either in the old Code or in the new Code. Therefore, the contention that the absence of a complaint by the Revenue Court was a bar for taking cognizance by the Criminal Court in respect of these offences which were committed even before the start of the proceedings before the Revenue Court cannot be sustained. The view taken by the High Court appears to be correct".

The ratio of above authority is helpful to me while adjudicating the facts in hand because the act of forging a will was prior in time than its production in court. The Full Bench of this Court has also answered in the same manner as has been answered by the Hon''ble Supreme Court in 1994(2) RCR 673 supra.

In Harbans Singh and others v. State of Punjab, 1986(2) All India Criminal Law Reporter 310 it was held in para No. 25 [1986(2) RCR (Crl.) 481 Para 18] as follows :

"The net result of the discussion is that Karnail Singh''s case is correctly decided and depicts the correct position of the law. Section 195(1)(b)(ii) of the new Code is limited in its operation only to the offences mentioned in this section if committed in regard to a document produced or given in evidence in such proceedings, while the document is in the custody of the Court. It has no application to a case in which such a document is fabricated prior to its production or given in evidence".

Strength can also be derived from Karam Singh v. Ved Parkash and others, 1988(1) RCR 237 , where the Single Bench held that if a document has been fabricated prior to its production in court the bar of section 195(1)(b)(ii) does not apply to such a case as this section is applicable where fabrication is committed while the document is in the custody of the court.

Again I take support from Narati Devi v. Jeet Singh and others, 1987(1) RCR 70. The facts of this case are akin to the facts in hand. In the cited case the accused set up a forged will in civil court. Criminal complaint was filed against the accused and it was decided that criminal court had the jurisdiction to entertain such complaint. Wazir Singh v. State of Punjab, 1988(2) RCR 345 , cited by the learned counsel for the petitioners is another authority on the point. In this case the accused made interpolation in the decree sheet and produced the same in the court and it was held that the court can only file the complaint if the forgery was committed when the document was in the possession of the Court. Harbans Singh v. State of Punjab, 1986(2) RCR 481 (FB) was relied upon.

Thus from the overwhelming ratio it can be said that the contentions raised by Shri Gupta, learned counsel for the petitioners that there was a bar under section 195 of the Code is not tenable. The judgments which have been quoted by Shri Gupta can be distinguished on facts. In that case the Magistrate had already taken the cognizance of a matter on 27.9.1983 and the original agreement appeared to have been filed in civil court on 9.2.1984 long after the cognizance was taken by the Magistrate. In these circumstances it was held that once cognizance was taken two courses were open to the Magistrate namely either to discharge the accused if the evidence does not disclose the offence or to acquit the accused after the full trial. It was also observed by the Hon''ble Supreme Court that since cognizance was already taken by the court before the filing of the document in the civil court and revision was not filed before cognizance was taken, therefore, the High Court was right in directing that the Magistrate was at liberty to proceed with the trial of the criminal case. The ratio of para No. 11 quoted above if read in the context of the language of section 195(1)(b)(ii) would clearly indicate that this bar is attracted if the offence is alleged to have been committed in respect of document produced or given evidence when such document is already in the custody of the Court. The words "when such evidence is alleged to have been committed" are of significance. At the cost of repetition I may say if such offence has already been committed with respect to a document produced or given in evidence outside the court, the bar of section 195 will not come into play.

It was then submitted by the learned counsel for the petitioners that the Magistrate could not take cognizance over the matter on the basis of the complaint of Kulwant Singh who was not a party to the civil suit. The argument is devoid of any merit. The complaint has been defined in Section 2(d) of the Code of Criminal Procedure and it lays down as follows :

"(d) ''complaint'' means any 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, but does not include a police report".

Section 190 Cr.P.C. lays down under what circumstances a Magistrate has to take the cognizance. According to this Section, the Magistrate can take the cognizance of any offence upon receiving a complaint of facts which constitute such offence. There is no bar that any particular person cannot file a complaint. The only requirement of law is that there should be a complaint in terms of Section 2(d). Wherever, the Legislature wanted to impose a bar that only an aggrieved person can file a complaint, it had already imposed such a bar. Kulwant Singh is none else but the husband of Gurcharan Kaur, who is the daughter of Darshan Singh. It was his wife Smt. Gurcharan Kaur who filed a suit for possession of the landed property belonging to the deceased Darshan Singh. Moreover, Kulwant Singh was the legal and lawful attorney of Smt. Gurcharan Kaur and he persued the case on behalf of his wife right from the court of Sub Judge up to the High Court. In this view of the matter, it can be safely concluded that there was no bar on the part of respondent Kulwant Singh to file the complaint.

Here I would also like to deal with another proposition of law though not directly connected with the controversy in hand as to whether the application under section 340 Cr.P.C. can be filed after the conclusion of the proceedings by a civil court. During the course of submission, an argument was raised before this court on behalf of Shri Gupta, that the complaint should be dismissed under section 195 Cr.P.C. and the respondent should be relegated to the provisions of Section 340 Cr.P.C. and he should file an application before the Civil Court which will hold a preliminary enquiry and then decide whether to file a complaint against the petitioners or not ? It was argued by Mr. Prem Jit Kalia, Advocate, on behalf of the respondent that since civil court had already become functus officio, therefore, such a remedy is not open to the respondent. Section 340 Cr.P.C. lays down as follows :

"340. Procedure in cases 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 subsection (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 of the accused before such Magistrate, or if the alleged offence is nonbailable 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 subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (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 subsection (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.

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

After the reading of the above section I have come to this conclusion that application under section 340 Cr.P.C. can even be filed after the conclusion of the proceedings and there is no bar that such an application must be filed during the pendency of the proceedings. The intention of the Legislature behind section 340 is to discourage the offences of forgery etc. and erring litigant should not go scot free with the end of the decision whether done at the initial stage or at the appellate stage. The Legislature has felt that these type of offences affect the administration of justice and to curb this tendency on the part of the erring litigants there should not be any limitation. The only precaution which had been depicted under section 340 is that on making such application the court may conduct a preliminary enquiry, if any, as it thinks necessary to record a finding to that effect that offences referred to in clause (b) of (1) of Section 195 Cr.P.C. has been committed and after recording of such fact can file a complaint to the court of competent jurisdiction. Be that as it may in the present case the respondent is not required to adopt the provisions of section 340 Cr.P.C. as he has become successful by showing that offence of forgery has been committed prior in time to the start of the civil proceedings and that the will was not in the custody of the court when the offence with relation to that will was committed, therefore, a complaint was legally maintainable.

In the light of above discussion I hold that the complaint filed by Kulwant Singh was legally maintainable. It was not barred under section 195 Cr.P.C. and that Kulwant Singh had the locus standi to start the criminal proceedings against the present petitioners and their coaccused. The petition is hereby dismissed.