KANTILAL KHIMCHAND v. STATE — 1962 DIGILAW 87 (GUJ)

V. B. RAJU, J. ( 1 ) THE applicant was convicted under secs. 380 467 and 471 Indian Penal Code. The prosecution case was that the accused who was a plaintiff in Civil Suit No. 304 of 1960 pending in the Court of Joint Civil Judge Junior Division Surat. Defendant No. 1 produced a list EX. 28 along with Ex. 28/1 a receipt purporting to have been passed by the accused. Before the receipt vas actually exhibited it was the prosecution case that the plaintiff took it from the record of the Court and inserted in its place Ex. 18 a forged document which is alleged to have been forged by him adding some words to the words in the original document. According to the prosecution both Exs. 28/1 and Ex. 18 the forged receipt were signed by the accused. On these facts the accused was prosecuted under secs 380 467 and 471 I. P. Code and has been convicted by the trial Court as well as by the Sessions Court in appeal ( 2 ) NOW in revision it is contended by the learned counsel for the applicant that in this case there has not been any complaint by the Court and such a trial requires a complaint by Court in view of the provisions of sec. 195 (1) (c) Cri. Pro. Code. This section reads as follows:- (1) No Court shall take cognizance (c) of any offence described in sec. 463 or punishable under sec. 471 sec. 475 or sec. 476 of the same Code when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court or of some other Court to which such Court is subordinate. ( 3 ) HE relies on re Gopal Sidheshvar 9 Bombay Law Reporter 735 (6 Cri. ( 3 ) HE relies on re Gopal Sidheshvar 9 Bombay Law Reporter 735 (6 Cri. L J. 78) for his contention that the word produced in the above section is not the same thing as giving in evidence and that a document produced in Court is one which is produced for the purpose of being tendered in evidence or for some other purpose The learned Judges of the Bombay High Court therein held as under:section 195 (c) of the Criminal Procedure Code 1898 applies to a document which is alleged to have been forged and which is produced in a Court of Justice Under the section the production of a document in a Court is not the same thing as giving it in evidence. A document produced in a Court means one which is produced for the purpose of being tendered in evidence or for some other purpose. ( 4 ) THE learned counsel for the applicant also relied on Zumberlal v. Malobi 18 Cri. L. J. 1001. In that case it was held that the document though not produced in the Civil Court was under the control of Court and sec. 195 (1) (c) of the Cri. Pro. Code applied to such a document. The learned Judges were dealing with the case where the plaintiff mentioned in his list of documents upon which he relied a document which Was lying with the Sub-Registrar and he made an application to the Subordinate Judge for an order for the production of the document. The learned Judge ordered the Sub-Registrar to produce it but before it was produced in Court it was discovered to be a false document. The learned Judge disagreed with the view taken in Latta Prasad v. Emperor I. L. R. 34 All. 654 that so long as the prosecution is confined to offences connected with a document committed prior to its production in Court such prosecution is within the law and requires no sanction. According to the learned Judge that was too narrow a construction placed on sec. 195 and he observed that the wording of clause (c) is wide enough to cover the case of an offence committed in relation to any proceeding before a Court. The learned counsel for the applicant also relied on Nalini Kanta Laha v. Anukul Chandra 18 Cri. According to the learned Judge that was too narrow a construction placed on sec. 195 and he observed that the wording of clause (c) is wide enough to cover the case of an offence committed in relation to any proceeding before a Court. The learned counsel for the applicant also relied on Nalini Kanta Laha v. Anukul Chandra 18 Cri. L. J. 522 wherein it was held that an alleged forged document which had been registered before a Sub-Registrar and was called for by the Magistrate in the proceedings under sec. 145 Cr. P. C. and was made use of by the pleader in the course of his argument and referred to by the Magistrate in his judgment was a document within the meaning of sec. 195 (1) (c) Cr. P. C. and the accused could not be prosecuted in respect of its antecedent forgery and antecedent user before the Sub-Registrar without the sanction of the Magistrate. ( 5 ) THE learned counsel for the applicant also relied on Gobindram Sunderdas v. Emperor 43 Cr. L. J. 612 where it was observed that the words produced or given in evidence in clause (c) of sec. 195 (1) are disjunctive and the words in that section do not qualify the word `produced and the document can come within sec. 195 (1) (c) even if it was not produced in evidence. In this case a reference was also made to the observations of Macleod C. J. in In re Bhau Vyankatesh Chakorker I. L. R. 49 Bom. 608 4614) which are as follows:we think the. sec. 195 (1) (c) is wide enough to include any document produced or given in evidence in the course of a proceeding Whether produced or give in evidence by the party who is alleged to have committed the offence or by anyone else and that the intention of the Legislature in the framing of the section as it stands now was to give authority only to the court in which a proceeding was pending to file a complaint in respect of documents which were produced or given in evidence before it. If there had been any intention to limit the provisions of the section to a document produced or given in evidence by a party to the proceeding then it would have been a simple matter to insert words to make that intention clear. If there had been any intention to limit the provisions of the section to a document produced or given in evidence by a party to the proceeding then it would have been a simple matter to insert words to make that intention clear. These words are not there. ( 6 ) HE also relied on Satya Dev Bushehari v. Ghanshiam 1953 Cri. L. J. 1683 where it was held that a mere filing of a document amounts to production and the word produced does not necessarily mean produced in evidence. Reliance was also placed on Gulabchand v. Emperor A. I. R. 1925 Bombay 467 where it was held as under:where a party to a proceeding hands up a document to the Judge who does not take the document on the file but returns it to the party the document is produced in the proceeding with the meaning of sec. 195 (1) (c ). No complaint with reference to the document can be entertained by a criminal court in the absence of a complaint in writing by the Court concerned ( 7 ) RELIANCE was also placed on In re Bhau Vyankatesh A. I. R 25 Bombay 433 where it was held as under:-SECTION 195 (1) (c) is wide enough to include any document produced or given in evidence in the course of a proceeding whether produced or given in evidence by the party who is alleged to have committed the offence or by any one else. ( 8 ) THE wording of a section is always very important and if we turn to clause (c) of sec. 195 (1) Cri. Pro. Code it is clear that following are the requirements of that clause:- (1) The offence must be one described in sec. 463 or punishable under sec. 471 sec. 475 or sec. 476 Indian Penal Code. (2) That the offence must be alleged to have been committed by a party to a proceeding in Court. (3) That the offence must be alleged to have been committed by him in respect of a document produced or given in evidence in such proceeding. If these requirements are satisfied then there must be a complaint in writing of such Court or some other Court to which such Court is subordinate. The offence under sec. 467 I. P. Code is included in the expression any offence described in sec. 463. If these requirements are satisfied then there must be a complaint in writing of such Court or some other Court to which such Court is subordinate. The offence under sec. 467 I. P. Code is included in the expression any offence described in sec. 463. because forgery defined In sec. 463 is a forgery of any type of documents. ( 9 ) OFFENCES under secs. 467 and 471 are alleged to have been committed by the accused. The first requirement is therefore satisfied. The second requirement is that the offence must he alleged to have been committed by a party to a proceeding in Court. The accused was plaintiff in the Court and the second requirement is also satisfied. The third requirement is that the offence must be alleged to have been committed by him in respect of a document produced or given in such proceeding The Legislature did not use the words produced or given in evidence by him in such proceeding. It is therefore clear that the words produced or given in evidence mean by any one and not necessary by the accused. Some times a witness may produce a document in Court and it may be used by a party in the proceeding. The person who uses the document may be different from the person who produced it in the Court although technically the party is deemed to have produced it. ( 10 ) NOW in this case according to the learned Sessions Judge the document was not produced in the Court at all but was merely inserted in the record of the Court by the accused. According to the learned Sessions Judge the original document which was produced was different from this document and the original document had been produced by the defendant in the Court. This document Ex. 18 which is alleged to be forged was not at all produced in the Court either by the plaintiff or the defendant and was intended to take place of the document which has been produced. The argument of the learned Sessions Judge is that it was not at all produced in Court so that the question whether it was produced by a party or someone else does not arise. The argument of the learned Sessions Judge is that it was not at all produced in Court so that the question whether it was produced by a party or someone else does not arise. According to the prosecution the document was inserted in the record of the Court with the idea that the Court should be led into the belief that this was the document which the defendant had produced. It is true that the document namely Ex. 18 did not bear any mark like Ex. 28/1 on it. The only authority relied on by the learned counsel by the applicant on this point is 18 Criminal Law Journal 1001 where it was observed that a document which comes under the control of the Court must be deemed to have been produced in the Court. The contention of the learned government Pleader is that the Court was unaware of its existence and the document was not under the control of the Court. But the expression used in clause (c) of sub-sec. (1) of sec. 195 Criminal Procedure Code is in respect of a document produced or given in evidence in such proceeding Technically it is true that the document produced in such proceeding is Ex 28/1 and that document had not been forged but had only been stolen away. But the expression `in respect of a document produced in such proceeding must apply to a document which was inserted with the object of taking the place of document produced in such proceeding. It can also be said that the document which was inserted in the record of the Court was produced in the Court. The record of the Court includes not merely the record when the Court is sitting in open Court but also includes the record after the Court has completed its sitting in the open Court. Therefore in my opinion to insert a document in the record of the Court itself amounts to producing it in the record of the Court and therefore amounts to production in such proceeding. For both these reasons I hold that the document namely Ex. 18 was produced in such proceeding. According to the prosecution it was produced in such proceeding and according to the prosecution the offence under secs. 467 and 471 was alleged to have been committed in respect of such a document. Therefore in my opinion sec. For both these reasons I hold that the document namely Ex. 18 was produced in such proceeding. According to the prosecution it was produced in such proceeding and according to the prosecution the offence under secs. 467 and 471 was alleged to have been committed in respect of such a document. Therefore in my opinion sec. 195 (1) (c) of the Criminal Procedure Code does apply to the facts of the present case and a complaint of the Court referred to in that clause is necessary. In absence of such a complaint under sec. 195 (1) (c) Cri. Pro. Code as admitted by the learned Government Pleader the conviction of the applicant under secs. 467 and 471 I. P. Code is bad. The conviction of the applicant under both these sections and the sentences passed against him are therefore set aside. Pine if paid should be refunded ( 11 ) BUT the conviction of the applicant under sec. 380 I. P. Code for the offence of theft of the document Ex. 28/1 is not bad as it does not require the sanction of the Court in view of the Federal Court Ruling in Hori Ram Singh v. Emperor 1939 Federal Court Reports 159 which was followed in The State v. Laldas 54 Bombay Law Reporter 955 and Basir-Ul-Huq v. The State of West Bengal A. I. R. 1953 S. C. 293 the learned Counsel for the applicant however has strenuously urged that the sentence should be reduced to one of fine. It is true that this is a case of theft of a document from the record of the Court. But nevertheless it was a theft of a document and the litigation related to a tenancy proceeding and the plaintiff was a tenant. Having regard to all these circumstances I reduce the sentence to one years rigorous imprisonment and a fine of Rs. 300. 00 in default six months R. I sentence reduced .