Heard Mr. Sri Farooq Ayoob , learned counsel for the petitioner and Shri Rajendra Kumar Dwivedi, learned Additional Government Advocate.
The petitioner has challenged the order dated 19.5.2010 passed by the Chief Judicial Magistrate, Faizabad, whereby the petitioner's application moved under Section 156(3) of the Code of Criminal Procedure (Hereinafter referred to as 'the Code') has been rejected on the ground that it is a matter of forged document, which is submitted before the revenue court, therefore, it is the revenue court, which is competent enough to take action in the matter.
Being aggrieved with the said order, the petitioner preferred a criminal revision before the Additional Sessions Judge, Faizabad being criminal revision no. 157 of 2010 which has been rejected by means of order dated 6.12.2010.
Upon perusal of the documents, the facts of the case are very much obvious that the alleged forgery in preparation of khatauni was committed in the record office, Faizabad. The beneficiary produced the said alleged khatauni before the Civil Judge (Junior Division) Haveli , Faizabad to get the benefit of that. The khatauni being forged one, the petitioner (complainant) moved an application before the Civil Judge (Junior Division), Haveli, Faizabad raising objection with the prayer not to give him any benefit of the said forged document and also moved an application before the Chief Judicial Magistrate, Faizabad under Section 156(3) of the Code to lodge the First Information Report against him. The learned Chief Judicial Magistrate rejected the same on the ground that the competent court to deal with such matter is that very court; where the other side has moved an application to get the benefit of the said document, which has been rejected. The revisional court also upheld the said order.
The question for consideration is who is competent to move the complaint in such a case and which court is competent to entertain the same?
Section 195 (1) (a) (i) and (b) (ii) of the Code governs such cases, which is extracted below:-
"Section 195 (1)............................
(a)(i):- of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or Section 195 (1)(b)(i) .........................
(b) (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."
Section 340 of the Code provides the procedure to cover the cases mentioned in Section 195 of the Code, which is extracted below:-
"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 sub-section (1) of the section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as 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) sent it to a Magistrate of the first class having jurisdiction;
(d) take sufficing security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, sent 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."
The same question arose before the Hon'ble Supreme Court for consideration earlier in the case of Patel Laljibhai Somabhai v. the State of Gujarart (AIR 1971 SC 1935) while considering the scope of corresponding the provision of section 195 of Code in the old Code of Criminal Procedure 1898, the Hon'ble Supreme Court held as under:-
"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 reasonable 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 us to be more appropriate to adopt the strict construction of confining the prohibition contained in S. 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."
The Hon'ble Supreme Court further observed that the legislature could not have intended to extend the prohibition in the sup-section to offences committed by a party to the proceedings prior to his becoming such a party.
The co-ordinate bench of the Hon'ble Supreme Court followed the dictum in the subsequent judgment rendered in the case of Sachida Nand Singh v. State of Bihar CRI. L.J. 1565 and concluded as under:-
"para 24:- The sequitur of the above discussion is that the bar contained in S. 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court. Accordingly we dismiss this appeal."
In another case i.e. Iqbal Singh Marwah and another v. Meenakshi Marwah and another 2005 CRI.L.J. 2161, the constitution bench of the Hon'ble Supreme Court appreciated the judgement rendered in the case of Sachida Nand Singh (Supra) and interpreted the provision of section 195 of the Code and held 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 a Court": occurring in cl. (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 cls. (a)(i) and (b) (I) and consequently with the scheme of S. 195 Cr.P.C. this indicate that cl. (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.
Ultimately the Hon'ble Supreme Court, in view of the discussion made above, was of the opinion that the case of Sachida Nand Singh (Supra) has been correctly decided and the view taken therein is the correct view. Section 195 (1)(b) (ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.
Further in the case of Mahesh Chand Sharma v. State of U.P. & Ors. [2010(1) JIC 187 (SC)] the Hon'ble Supreme Court followed the same view and held that the law on the point is well settled in the light of the above said two judgments of this Court that Section 195(1)(b)(ii) of the Cr.P.C. contemplates a situation where offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court.
This Court also in the Case of Anil and another v. State of U.P. and another in Criminal Miscellaneous Case no. 3705 of 2008 (U/s 482 of Cr.P.C.) following the dictum of the Hon'ble Supreme Court has held that in respect to the forged document subsequently submitted before the court there is no bar to take cognizance of offence under Section 195 of the Code.
Keeping in view the facts of the present case it is apparent that the Khatauni was fabricated and prepared in a forged manner in the record office, Faizabad and was produced subsequently before the court of Civil Judge (J.D.), Haveli, Faizabad to get the benefit of the same. There is no bar under Section 195 of the Code to take cognizance in the matter for the learned Chief Judicial Magistrate. Therefore, I am of the view that he misread the provision of the Code in light of the facts of the case and has committed error in rejecting the petitioner's application moved under Section 156(3) of the Code. That being so, the order impugned 19.5.2010 passed by the Chief Judicial Magistrate, Faizabad is hereby quashed with the direction to the learned Chief Judicial Magistrate, Faizabad to pass a fresh order on the petitioner's application moved under Section 156(3) of the Code on merit.
With the aforesaid observation/direction, the petition is disposed of finally.
Order Date :- 7.3.2011 GSY