Heard Shri Amit Saxena, learned Senior Advocate assisted by Shri Lal Vijai Singh, learned counsel for the applicants, Shri S.F.A. Naqvi, learned Senior Advocate assisted by Shri Syed Ahmed Faizan, Shri Manoj Dwivedi, learned AGA and perused the record.
The present application has been filed seeking quashing of the charge-sheet no.01/2020 dated 13.06.2020 filed in case crime no. 0011/2020, under Sections 193, 182, 341, 352, 420, 34, 504, 506 IPC, P.S. Amroha Dehat, district Amroha arising out of criminal case no. 1018 of 2020 (State Vs. Mohd. Bin Hussain & Others).
The need submission of the counsel for the applicants is that the investigation was barred by virtue of the specific bar created under Section 195(1)(b) (i)(ii) of the Cr.P.C.
The brief facts are that initially a dispute arose between the opposite party and the applicant nos.1 and 2 for which an FIR was lodged against the applicant nos.1 and 2 and son of the applicant no.2 under Sections 452, 354(b), 323, 504, 506, 427 IPC, which was registered as case crime no.119/18, P.S. Amroha Dehat, District Amroha on 05.03.2018.
An effort was made to lodge a cross FIR against the opposite party and his brother Rizwan with regard to same incident as disclosed in the case no.119/18 and thereafter the same was registered as case no.121/18.
The said FIRs subsequently led to registering of a case against the applicant no.1 under the U.P. Control of Goondas Act as case no.D-201813380001239 and a notice under Section 3 of the Goonda Act was issued to the applicant no.1 on 13.12.2018. The applicant nos.3 and 4 filed thereafter affidavits in favour of the applicant no.1 before the District Magistrate, Amroha in the case registered under the Goonda Act, stating therein that crime no.119/18 was deliberately registered as against applicant no.1 and he has been falsely implicated in the said case and it was specifically stated that the applicant no.1 is not a goonda and has no criminal history to his credit.
At that instance, when the affidavits were filed in support of applicant no.1, Shahnawaz, the opposite party no.2 herein filed an objection to the said case no. D-201813380001239 on 03.07.2019 and somehow wanted that the applicant no.1 should be implicated in the Goonda Act proceedings. It is on record that after hearing the parties the proceedings initiated under the Goonda Act against the applicant no.1 were quashed by a Court of A.D.M. (Finance & Revenue), Amroha, vide its order dated 05.07.2019. As soon as the proceedings were decided, the opposite party no.2 herein with oblique purpose filed an application under Section 156(3) Cr.P.C. narrating the incident as under:-
"8- ;g fd vkifRrdrkZ u ek0 U;k;ky; ,0Mh0,e egksn; vejksgk dks lk{; esa lk{kh xtuQj vyh [kka dk 'kiFki= es fnukad 11-06-2019 dks nkf[ky fd;kA ftlds iSjk ua 7 es dgk gS fd mDr okn ds eqfYte ekSgEen fcu gqlSu ds firk dks 'kgukt o fjtoku ykBh&M.Mks ls ekjk Fkk rFkk tcjnLrh ?kj esa ?kql x; Fks rFkk mUgksus mDr okn ds eqfYte ds firk dks xUnh&xUnh xkfy;ka nh Fkh rFkk ekjihV dh Fkh ftldh izFke lwpuk fjiksVZ mDr eqfYte ds firk rktnkj us igys iqfyl es fjiksVZ djk;h ckn esa 'kgukt gSnj us >wBh fjiksVZ iqfyl esa fy[kk;hA tcfd v0la0 [email protected] es mDr xtuQj vyh [kka us iqfyl {ks=kf/kdkjh egksn; vejksgk dks nkSjkus foospuk dk 'kiFki= fn;k mlds rF; bl 'kiFki= ls fcYdqy fHkUu gSA xtuQj vyh [kka us eqfYte ekSgEen fcu gqlSu ls gelkt gksdj ekuuh; U;k;ky; ,0Mh0,e0 vejksgk dks xqejkg djus ds fy, fcYdqy >wBk 'kiFki= fn;k gSA nksuks 'kiFk i=ksa dh izfr;ka layXu gSA 9- ;g fd vkifRrdrkZ us ek0 U;k;ky; ,0Mh0,e egksn; vejksgk dks lk{; es lk{kh vjeku gSnj dk 'kiFk i= es fnukad 11-06-2019 dks nkf[ky fd;kA ftlds iSjk ua0 7 es dgk gS fd mDr okn ds eqfYte ekSgEen fcu gqlSu ds firk dks 'kgukt o fjtoku ykBh&M.Mks ls ekjk Fkk rFkk tcjnLrh ?kj esa ?kql x; Fks rFkk mUgksus mDr okn ds eqfYte ds firk dks xUnh&xUnh xkfy;ka nh Fkh rFkk ekjihV dh Fkh ftldh izFke lwpuk fjiksVZ] mDr eqfYte ds firk rktnkj us igys iqfyl esa ntZ djk;h ckn es 'kgukt gSnj us >wBh fjiksVZ iqfyl esa fy[kk;hA tcfd v0la0 [email protected] es mDr vjeku gSnj us iqfyl {ks=kf/kdkjh egksn; vejksgk dks nkSjkus foospuk dk 'kiFki= fn;k mlds rF; bl 'kiFki= ls fcYdqy fHkUu gSA vjeku gSnj us eqfYte ekSgEen fcu gqlSu gelkt gksdj ekuuh; U;k;ky; ,0Mh0,e0 vejksgk dks xqejkg djus ds fy, fcYdqy >wBk 'kiFk i= fn;k gSA nksuks 'kiFk i=ksa dh izfr;ka layXu gSaA 10- ;g fd mDr vkifRr o 'kiFki=ksa ds rF;ksa ls ;g HkyhHkkfr :i ls lkfcr gksrk gS fd mDr vkifRrdrkZ ekSgEen fcu gqlSu o mlds firk rktnkj gqlSu 'kiFkdrkZ xtuQj vyh [kka o vjeku gSnj fugk;r gh pkykd] pkjlkSchl] /kks[ksckt fxjksgcUn o xq.Ms fdLe ds tks ekuuh; U;k;ky; dks Hkh xqejkg djus esa Hkh viuh pkjlkSchlh o /kks[ksckth ls ckt ugh vk;s vkSj drbZ >wBh vkifRr o 'kiFki= ekuuh; U;k;ky; esa izLrqr dj vnkyr dks xqejkg dj fnukad 05-07-2019 dks xq.Mk ,DV dk ukfVl fujLr djkus esa dke;kc gks x;sA fnukad 06-07-2019 dks izkFkhZ ekSgYyk ydMk vejksgk esa tk jgk Fkk rks le; djhc 6 cts dk gksxk rHkh rktnkj gqlSu] ekS0 fcu gqlSu] vjeku gSnj o xtuQj vyh [kka us izkFkhZ ds jksdk vkSj cksys fd lkys rqus vkifRr nsdj gekjk D;k fcxkM+ fy;k geus c:, pkykdh o tkylkth o /kks[kk /kM+h ls rF; izLrqr dj viuk dke djk fy;k rqus cgqr vkifRr dj yh vc ge rq>ss bldk etk p[kk;sxs vkSj ekjihV dj mrk: gks x;sA izkFkhZ cMh eqf'dy ls buls viuh tku cpkdj fudykA rktnkj vkfn mijksDr cgqr gh tkylkt o fxjksgcUn fdLe ds yksx gS bUgksus bl izdkj /kkjk 193] 182] 420] 34] 504] 506 vkbZ0ih0lh0 dk xEHkhj o laKs; izd`fr dk vijk/k dkfjr fd;k gS ,sls yksxks ds f[kykQ l[r dne mBkdj dkuwuh dk;Zokgh fd;k tkuk U;k;fgr esa gSA izkFkhZ Fkkus x;k vkSj lkjh ckr iqfyl dks crk;h iqfyl us dksbZ dk;Zokgh ugh dh rks izkFkhZ us 24-07-2019 dks iqfyl v/kh{kd egksn; vejksgk dks jft0 Mkd }kjk f'kdk;rh izkFkZuk i= Hkstk fdUrq ml ij Hkh dksbZ dk;Zokgh ugh gqbZ etcwju izkFkhZ U;k;ky; dh 'kj.k es vk;k gSA vr% Jheku th ls izkFkZuk gS fd Fkkuk/;{k Fkkuk vejksgk nsgkr dks vknsf'kr Qjek;k tkos fd og mijksDr okD;kr dh fjiksVZ ntZ dj fu"i{k foospuk djsA Jheku th dh vfr d`ik gksxhA "
The said application was registered as an FIR and investigation was done by the police officer and during the course of the investigation, statements of opposite party no.2, one Qayum Raza and Ibrahim Raza were also recorded. In pursuance of the said investigation, a charge-sheet dated 13.06.2020 was filed in which initially summoning order was passed after taking cognizance and now non-bailable warrants have been issued. The said charge-sheet is under challenge in the present proceedings.
Neat submission of the counsel for the applicants is that from perusal of the complaint/application under Section 156(3) Cr.P.C. and from perusal of the averments as contained in para nos.8, 9 and10 in some substance the allegations against the applicants were that during the course of the quashi-judicial proceedings a false affidavit got prepared which led acquittal under the Goonda Act. In the light of the said he argues that there is a clear bar as contained in Section 195(1)(b) (i) and (ii) of Cr.P.C. to argue that the proceedings under the said sections can be initiated only on the complaint in writing of the Court or by such Officer of the Court as the Court can authorise or of some other Court to which that Court is subordinate.
Section 195(1) (b) of Cr.P.C. is quoted hereunder:-
195(1)(b).....
(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 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 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.
He further argues that in the present case admittedly there is no complaint by the Court or by any Officer authorised by the Court or by the Superior Court and thus, the entire investigation and the filing of the charge-sheet specifically barred in law is liable to be quashed on that ground alone.
In support of his argument, he has placed reliance upon the judgment of the Supreme Court in the case of M/S Bandekar Brothers Pvt. Ltd & Anr. Vs. Prasad Vassudev Keni, ETC. ETC. reported in 2020 AIR SC 4247 and particularly places reliance on para 15, 21, 24, 26, 32 and 44 which are quoted hereunder:
"15. In Dr. S. Dutt v. State of Uttar Pradesh (1966) 1 SCR 493, the question arose in the context of an expert witness (i.e. the Appellant before the Supreme Court) who produced a diploma before the Sessions Court from the Imperial College of Science and Technology in London, to the effect that he had specialised in the subject of criminology. The prosecution applied to the Sessions Judge under Section 195 of the CrPC for prosecution of Dr. Dutt under Section 193 of the IPC. This application was rejected. Two days after its rejection, the private complainant lodged a report at a police station alleging that Dr. Dutt had committed an offence under Section 465, 466 and 471 of the IPC, stating that the diploma produced was forged, and that Dr. Dutt had used this "in the court with a bad motive", passing it off as genuine. The question which arose before this Court was as to whether the private complaint was substantially for offences under Sections 191 to 193 or 196 of the IPC, as against the "forgery" sections contained in the IPC from Section 463 onwards. After setting out the two sets of sections contained in the IPC, the Court held:
"The broad distinction between offences under the two groups is this. Section 465 deals with the offence of forgery by the making of a false document and Section 471 with the offences of using forged documents dishonestly or fraudulently. Section 193 deals with the giving or fabricating of false evidence and Section 196 with corruptly using evidence known to be false. The gist of the offence in the first group is the making of a false document and the gist of the offences in the second group is the procuring of false circumstances or the making of a document containing a false statement so that a judicial officer may form a wrong opinion in a judicial proceeding on the faith of the false evidence. Another important difference is that whereas Section 471 requires a user to be either fraudulent, dishonest or both, Section 196 is satisfied if the user is corrupt. The Penal Code defines the expressions fraudulently and dishonestly but not the expression corrupt.
We shall now attempt to apply the two groups of offences contained in Chapter XI and Chapter XVIII, to the proved acts of Dr Dutt. We shall begin with Chapter XI. The definition of the expression "fabricating false evidence" in Section 192, already quoted, quite clearly covers this case. If Dr Dutt fabricated the false diploma he made a document containing a false statement intending that it may appear in evidence and so appearing in evidence may cause any person who is to form an opinion upon it to entertain an erroneous opinion touching on point material to the result of a judicial proceedings. Dr Dutt, as alleged, was falsely posing as an expert and was deposing about matters which were material to the result of the trial. He had a document to support his claim should occasion arise. He produced the document, although asked to do so, intending that the presiding Judge may form an erroneous opinion about Dr Dutt and the relevancy of his evidence. The case was thus covered by Section 192. When Dr Dutt deposed, let us assume falsely about his training, he committed an offence under Section 193. Again, when Dr Dutt used the diploma as genuine his conduct was corrupt, whether or not it was dishonest or fraudulent." (at pages 499-500) "It would thus be seen that the action of Dr Dutt was covered by Sections 192 and 196 of the Penal Code. If Dr Dutt gave false evidence in court or if he fabricated false evidence the offence under Section 193 was clearly committed. If he used fabricated evidence an offence under Section 196 was committed by him. These offences would have required a complaint in writing of the Sessions Judge before cognizance could be taken." (at page 501) "We are, therefore, satisfied that Dr Dutt's conduct does not come within Section 471. On the other hand, it falls within Section 196 which casts its net wider in the interest of the purity of administration of justice. It may be noted that an offence under Section 196 of the Penal Code is a far more serious offence than the offence under Sections 465/471.. The former is punishable with imprisonment upto seven years and fine while the latter is punishable with imprisonment upto two years or with fine.
In this connection we may again recall the words of this Court which were put in the forefront by Mr Chari that it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under Section 195 of the Code of Criminal Procedure. If the offence was under Section 196 of the Indian Penal Code, a complaint in writing by the court concerned was required. Before a complaint is made the court has to consider whether it is expedient in the interests of justice to order a prosecution. In the lesser offence no such complaint by the court is necessary and it is obvious that the lesser offence was chosen to bypass the Sessions Judge who had earlier decided that Dr Dutt should not be prosecuted for perjury. Such a device is not to be commended. In our opinion, the offence in the present case did not fall withinSections 465/471 IPC and the prosecution launched against Dr Dutt cannot be allowed to go on." (at pages 503-504)
21. Likewise, in Mansukhlal Dhanraj Jain and Ors. Etc. v. Eknath Vithal Ogale Etc., (1995) 2 SCC 665, the expression "Suits and proceedings between a licensor and licensee...relating to the recovery of possession" under Section 41(1) of the Presidency Small Cause Courts Act, 1882 came up for consideration before this Court. The Court held:
"14...The words ''relating to' are of wide import and can take in their sweep any suit in which the grievance is made that the defendant is threatening to illegally recover possession from the plaintiff- licensee. Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant to forcibly recover such possession from the plaintiff, can clearly get covered by the wide sweep of the words "relating to recovery of possession" as employed by Section 41(1).
xxx xxx xxx
16. It is, therefore, obvious that the phrase "relating to recovery of possession" as found in Section 41(1) of the Small Cause Courts Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possession from the licensee-plaintiff would squarely be covered by the widesweep of the said phrase. Consequently in the light of the averments in the plaints under consideration and the prayers sought for therein, on the clear language of Section 41(1), the conclusion is inevitable that these suits could lie within the exclusive jurisdiction of Small Cause Court, Bombay and the City Civil Court would have no jurisdiction to entertain such suits."
24. The Court first spoke of the broad scheme of Section 195 of the CrPC, which deals with three distinct categories of offences, and held that the category of offences contained in Section 195(1)(b)(ii) ought to be read along with the offences contained in Section 195(1)(a) and 195(1)(b)(i), which are clearly offences which directly affect either the functioning or discharge of duties of a public servant or of courts of justice. This was stated in paragraph 10 of the judgment as follows:
"10. The scheme of the statutory provision may now be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses (a),
(b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is -- "Of Contempts of the Lawful Authority of Public Servants".
These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as -- "Of False Evidence and Offences Against Public Justice". The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "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" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court."
26. Importantly, the Court then stated that Section 195 of the CrPC is an exception to the general provision contained in Section 190 thereof, and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated under Section 195, which must be necessarily follow the drill contained in Section 340 of the CrPC (see paragraph 21). An important reason is then given by the Court, which is that the victim of a forged document which is forged outside the court premises and before being introduced in a Court proceeding, would render the victim of such forgery remediless, in that it would otherwise be left only to the court mentioned in Section 340 of the CrPC who decides as to whether a complaint ought or ought not to be lodged in respect of such complaint. Paragraph 23 therefore states:
"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded."
32. Likewise, in a recent judgment in Narendra Kumar Srivastava v. State of Bihar and Ors. (2019) 3 SCC 318, the Court was concerned with false affidavits that had been prepared/forged outside the Court. This being so, the question that arose before the Court was whether the Magistrate was justified in taking cognizance of an offence punishable under Section 193 of the IPC on the basis of a private complaint. This Court held:
"13. It is clear from sub-section (1)(b) of Section 195 CrPC that the section deals with two separate set of offences:
(i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court; [Section 195(1)(b)(i)]
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 IPC, 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. [Section 195(1)(b)(ii)].
14. On the reading of these sections, it can be easily seen that the offences under Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearly distinct. The first category of offences refers to offences of false evidence and offences against public justice, whereas, the second category of offences relates to offences in respect of a document produced or given in evidence in a proceeding in any court.
15. Section 195 CrPC lays down a rule to be followed by the court which is to take cognizance of an offence specified therein but contains no direction for the guidance of the court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the latter court. For that purpose, one must turn to Section 340 which requires the court desiring to put the law in motion to prefer a complaint either suo motu or an application made to it in that behalf.
44. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 of the CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) of the CrPC must be followed. Thus, in State of Karnataka v. Hemareddy (1981) 2 SCC 185, this Court referred to a judgment of the Madras High Court (Re V.V.L. Narasimhamurthy AIR 1955 Mad 237) and approved its ratio as follows:
"7...In the third case, Somasundaram, J., has observed:
"The main point on which Mr Jayarama Aiyar appearing for the petitioner seeks to quash this committal is that on the facts an offence under Section 193 IPC is disclosed for which the court cannot take cognizance without a complaint by the court as provided under Section 195(1)(b) of the Criminal Procedure Code. The first question which arises for consideration is whether on the facts mentioned in the complaint, an offence under Section 193, IPC is revealed. Section 193 reads as follows:
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.
''Fabrication of false evidence' is defined in Section 192. The relevant portion of it is:
Whoever causes any circumstance to exist intending that such circumstance may appear in evidence in a judicial proceeding and that such circumstance may cause any person who in such proceeding is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceeding is said ''to fabricate false evidence'.
The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property.
The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC, i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471, IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b), Criminal PC a complaint may be made only when it is committed by a party to any proceeding in any court.
Mr Jayarama Aiyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a), of the Criminal PC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary."
8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."
Thus, on the basis of the arguments as recorded above and judgment cited above, Shri Amit Saxena, learned Senior Advocate states that the proceedings are liable to be quashed.
Shri S.F.A. Naqvi, learned Senior Advocate, on the other hand, argues that the bar under Section 195(1)(b) of Cr.P.C. would not operate where the offences discloses other than specified under Section 195(1) (b) of Cr.P.C. and thus argued that the application for quashing of the charge-sheet is liable to be rejected.
He has placed reliance on the judgments of this Court in the case of Kamla Prasad Singh Vs. Hari Nath Singh and another reported in AIR 1968 SC 19, and particularly places reliance on para nos. 5,6 and 7,which are quoted hereinbelow:-
5. The bar of s. 195 of the Code of Criminal Procedure which was invoked by Hari Nath Singh arises thus. No Court can take cognizance of an offence under s. 193 when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court. In these cases, Hari Nath Singh is charged with abetment of three offences committed by three public servants namely the two Lekhpals who have caused the preparation of an incorrect Khasra knowing it to be likely that they would thereby cause loss or injury to Kamla Prasad Singh and the other vendees. Hari Nath Singh is charged in the third case with abetment of the act of the Ahlmad who is alleged to have intentionally made a false entry about the case intending that the false entry should be used in a judicial proceeding and wrong opinion be formed about the date of the institution of the proceeding.
6. It will appear from this that the alleged offence committed by the Ahlmad was clearly in or in relation to a proceeding, in Court. In fact he made an incorrect entry about a case actually in Court with the intention that the date of the institution of the proceeding may be taken to be November 9, 1962 although the case was alleged to be instituted after December 4, 1962.
83 1 His offence (if any be proved against him) would fall within s. 192. Section 192 deals with fabrication of false evidence to be used in a judicial proceeding so as to cause an erroneous opinion to be formed on a material point. Section 192 therefore completely covers the case against Ahlmad, and must cover the case of Hari Nath Singh the alleged abettor. Section 218 Indian Penal Code does not apply in this case, because the record was not made with the object of saving or injuring any person or property. The offence of s. 192 Indian Penal Code is punishable under s. 193 Indian Penal Code and the latter section is one of the sections mentioned in s. 195 (1 ) (b) of the Code of Criminal Procedure, the gist of which has been reproduced above. The decision of the High Court was therefore right that the Court could not take cognizance of the offence alleged against the Ahlmad and his abettor, because the offence was fabricating of false evidence in a case which was in fact pending and the false entry was made with the object that an erroneous opinion be formed on a material point. Such a case could only be instituted by a Court in which or in relation to which this offence was committed and a private complaint was therefore incompetent.
7. The alleged offence against the Lekhpals and their abettor Hari Nath Singh in the other two cases is of a different order. The offence of S. 218 Indian Penal Code is not a minor offence, included within s. 192. It is a distinct offence which can be proceeded against without the bar of s. 195 of the Code of Criminal Procedure. There is some resemblance between s. 192 and s. 21 8 Indian Penal Code, because both deal with the preparation of a false record. There the resemblance ceases. Whereas in s. 192, the record is prepared for use in a judicial proceeding with the intention that an erroneous opinion be formed regarding a material point, the offence in s. 218 is the preparation of a false record by a public servant with the intention of saving or injuring any person or property. The intention here was to save the property from the vendees namely Kamla Prasad Singh and others. The offence was complete the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in a judicial proceeding so as to cause an erroneous opinion to be formed touching on a point material to the result of such proceeding. In the Ahlmad's case this latter condition was the most important ingredient. In the case of the Lekhpals, it was immaterial whether the record would be produced in a judicial proceeding or not so as to cause an erroneous opinion to be formed. The intention was to save the property from the effects of the sale and the preparation of the false record was therefore sufficient from this point of view. In other words, the offence of the Lekhpals (if any be proved against them) would fall within s. 218 and not s. 192/193 of the Indian Penal Code. It may fill in the latter sections if the entry 8 32 can be said to be in or in relation to a Court. This cannot be said of the entries in the Khasra. As s. 218 is not named in s. 195 of the Code of Criminal Procedure, the private complaint of Kamla Prasad Singh could be entertained by the Court and there was no bar.
The next judgment cited by Shri Naqvi is in the case of Sachida Nand Singh and another Vs. State of Bihar, reported in AIR 1998 SC 1121, and has placed reliance upon para nos. 9, 12, 24 of the said judgments which are quoted hereinbelow:-
"9. That apart it is difficult to interpret Section 195(1)(b)(ii) as containing a b ar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the court. Any such construction is likely to ensue unsavoury consequences. For instance, if rank forgery of a valuable document is detected an the forgery is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long drawn litigation which was either instituted by himself or some body else who can be influenced by him and thereby pre-empt the prosecution for the entire long period of pendency of that litigation. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill vs. Donald Humberstone & Co. Ltd. (1963-1-W.L.R.929) Maxwell has stated in his treaties (Interpretation of Statutes, 12th Edn. Page 105) that "if the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonable practicable result". The clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observation is eminently applicable here.
12.That apart it is difficult to interpret Section 195(1)(b)(ii) as containing a b ar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the court. Any such construction is likely to ensue unsavoury consequences. For instance, if rank forgery of a valuable document is detected an the forgery is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long drawn litigation which was either instituted by himself or some body else who can be influenced by him and thereby pre-empt the prosecution for the entire long period of pendency of that litigation. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill vs. Donald Humberstone & Co. Ltd. (1963-1-W.L.R.929) Maxwell has stated in his treaties (Interpretation of Statutes, 12th Edn. Page 105) that "if the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonable practicable result". The clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observation is eminently applicable here.
24. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to case where forgery of the document was committed before the document was produced in a Court. Accordingly we dismiss this appeal.
He has further placed reliance upon the judgment of the Supreme Court in the case of State of Karnataka Vs. Hemareddy and another, reported in AIR 1981 SC 1417 and particularly places reliance on para 13 of the said judgment.
"13. We are bound by the view expressed in this decision that the Legislature could not have intended to extend the prohibition contained in s. 195(1) (c) Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. In the decision in Raghunath and Others v. State of U.P. and Others it is observed :
"In this Court the main contention raised on behalf of the appellants by their learned counsel was that even prosecution for an offence under Section 465 I.P.C. requires complaint by the revenue court concerned as such an offence is covered by Section 195(1)(c), Cr.P.C. This contention is difficult to accept. This Court has recently in Patel Laljibhai Somabhai v. The State of Gujarat [1971] 2 SCC 376 after considering the conflict of judicial opinion on this point, approved the view taken in Kushal Pal Singh case (supra). 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 proceeding in his character as such party, that is, after having become a party to the proceeding. The appellants' learned counsel tried to distinguish the decision of the Allahabad High Court in Kushal Pal Singh case (supra) by pointing out that in that case the offence of forgery was alleged to have been committed in 1898, more than 25 years before it was produced or given in evidence in court and it was for this reason that Section 195(1)(c), Cr.P.C. was held to be inapplicable. In our view, the duration of time between the date of forgery and the production or giving in evidence of the forged document in court is not a governing factor. The principle laid down in Sombabhai's case (supra) was not founded on any such consideration. Reference to such delay was made in that decision in another context. After taking notice of the fact that Section 195(1)(c), Cr. P.C. deprives a private aggrieved party of the general right recognized by Section 190 Cr.P.C. of directly initiating criminal proceedings this Court observed in the case:
"The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to be more appropriate to adopt in strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party".
In the present case, the offence of abetment of forgery was complete when the forged sale deed dated 10-11-70 was fabricated and registered. But no offence under s. 193 I.P.C. falling within the scope of s. 195(1)(b) of Cr.P.C. could be stated to have been committed by Hemareddy alias Vemareddy as the forged sale deed was not at all put in evidence at any stage in the redemption suit filed by the complainant on 17-11-70. Section 195(1)(b) of the Code of Criminal Procedure reads:
"(195) (1) No Court shall take cognizance,
(a)..................................
(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 ........................
.................................................."
Thus, on the basis of the arguments advanced before this Court what is to be decided by the Court is whether the filing of the charge-sheet was barred by specific bar created under Section 195(1)(b) of Cr.P.C. and on that ground whether the charge-sheet is liable to be quashed or not.
This question and the objections raised by the opposite party that the bar under Section 195(1)(b) would operate only specified therein and not in respect of other offences was considered by the Supreme Court in M/S Bandekar Brothers Pvt. Ltd. Anr (supra) and was answered specifically in para 44 as quoted hereinabove. The Supreme Court also considered the scope of Section 195 and has extensively interpreted the phrase "in relation to" and thus held that the bar would operate if the proceedings are "in relation to" things contemplated under Section 195Cr.P.c.
A plain reading of the application under Section 156(3) Cr.P.C. makes it clear that the sheet anchor of the complaint is that in the course of the proceedings relating to Goonda Act, false documents and affidavits have been filed by the applicants knowing them to be forged and thus the offence has been committed.
I have no hesitation to hold that the same is clearly barred by virtue of Section 195(1)(b) of Cr.P.C. as there was no complaint admittedly by the Court or by any Officer authorised by the Court or by the Superior Courtand the matter is clearly covered by the decision of the Supreme Court in the case of M/S Bandekar Brothers Pvt. Ltd. Anr (supra).
As regards the judgments cited by Shri Naqvi, the Supreme Court in the case of Kamla Prasad Singh dealt with the issue of documents created by the Lekhpals as Public Servants by preparing an incorrect Khasra including that it would be likely used for causing loss or injury and in that context the Supreme Court held as under:
"The offence was complete the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in a judicial proceeding so as to cause an erroneous opinion to be formed touching on a point material to the result of such proceeding. In the Ahlmad's case this latter condition was the most important ingredient. In the case of the Lekhpals, it was immaterial whether the record would be produced in a judicial proceeding or not so as to cause an erroneous opinion to be formed. The intention was to save the property from the effects of the sale and the preparation of the false record was therefore sufficient from this point of view. In other words, the offence of the Lekhpals (if any be proved against them) would fall within s. 218 and not s. 192/193 of the Indian Penal Code. It may fill in the latter sections if the entry 8 32 can be said to be in or in relation to a Court. This cannot be said of the entries in the Khasra. As s. 218 is not named in s. 195 of the Code of Criminal Procedure, the private complaint of Kamla Prasad Singh could be entertained by the Court and there was no bar. "
The second judgment relied upon by Shri Naqvi in the case of State of Karnataka VS. Hemareddy and another (Supra) dealt with a fabricated sale deed which was not put in evidence at any stage of suit and in that context it was held that the bar under Section 195(1)(b) was not attracted. Thus, the judgment cited is distinguishable on the facts of the present case.
The next judgment cited by Shri Naqvi in the case of Sachida Nand Singh and another Vs. State of Bihar (Supra) dealt with the issue of the bar contained under Section 195(1)(b) (ii) Cr.P.C. and held that the bar would not be applicable in the case where the forgery of document was committed before the document was produced in Court. Thus, the said judgment also can be distinguished on the facts of the present case.
In view of the facts as borne out from the present case, the complaint in sum and substance related to alleged forgery committed in filing of the affidavit filed before the Court, which was dealing with the proceedings under the Goondas Act and thus, the entire averments made in the complaint were clearly "in relation to" the proceedings under the Goondas Act and thus, I have no hesitation in holding that the bar as contained under Section 195(1)(b) would be clearly attracted.
In view of the said findings, the charge-sheet no.01/2020 dated 13.06.2020 being against the bar created under Section 195(1)(b) of Cr.P.C. is liable to be quashed and it is accordingly quashed.
The application is accordingly allowed.
Dt/09.02.2021/pks