Dano v. Shaner Lal — 1973 DIGILAW 423 (ALL)

ORDER H.N. Seth, J. - Smt. Dano, who had filed a complaint against Shanker Lal and others, has con le up in revision against the order dt. 2-3-1970 passed by the Judicial Magistrate, Sadar Chhata, Mathura, discharging the accused Shanker Lal after upholding the objection raised by him that the complaint filed by Smt. Dano was barred b ' Section 195(1)(c) of the Code of Criminal Procedure. 2. On 27-7-1968, Smt. Dano, wife of Thakuri, instituted a complaint u/s 419/465/468/149 IPC against Shanker Lal and others alleging that she was a share holder in the house mentioned in the complaint along with her brothers, Natthi and Ram Prasad, mother Smt. Kokila and sister Smt. Jagalo Nathi became adict to wine and gambling etc. and in order to procure money for satisfying his desires, he without the consent of the complainant mortgaged the 'house with Parshottam. When Natthi could not repay the loan Shanker Lal obtained a sale deed dated 1-8-1963 from him and 'others. This sale deed is said to have been executed, amongst others by Smt. Dano also. According to the complainant, she never executed the said sale deed. The accused persons got the sale deed registered by putting up before the Registrar some fictitious person in place of the complainant. In the circumstances, the accused persons were guilty of various offences mentioned above. After taking cognizance, the Magistrate summoned the accused persons fur offences Under Sections 419 and 405 IPC. 3. At this stage it would be pertinent to note that the accused Shanker Lal obtained a decree for the ejectment of tenants residing in the house covered by the sale deed dt. 1-8-1963 and put the same in execution (Ex. Case No. 300 of 1967). In those proceedings, Smt. Dano filed certain objections which were rejected by the Executing Court on 25-5-1968. Thereafter, Smt. Dano filed suit No. 96 of 1968 in the court of Munsif Mathura, seeking cancellation of the sale deed dt. 1-8-1963. In this suit she made an application praying for temporary injunction against Shanker Lal. However that prayer was refused on 12-7-1968. Smt. Dano then filed the present complaint on 27-7-1968. 4. Thereafter, Smt. Dano filed suit No. 96 of 1968 in the court of Munsif Mathura, seeking cancellation of the sale deed dt. 1-8-1963. In this suit she made an application praying for temporary injunction against Shanker Lal. However that prayer was refused on 12-7-1968. Smt. Dano then filed the present complaint on 27-7-1968. 4. The accused Shanker Lal moved an application before the Judicial Magistrate, Sadar contending that as the sale deed in question had been produced by Smt. Dano in civil suit No. 96 of 1968, instituted by her, as a party to those proceedings and the same had also been used in execution proceedings No. 300 of 1967, no complaint with regard to it could be filed without observing the provisions of Section 476 Code of Criminal Procedure. According to him, in view of the provisions of Section 195(1)(c) of the Code of Criminal Procedure, cognizance of the offence could not be taken on the basis of the complaint made by Smt. Dano. Along with his application Shanker Lal filed certain documents which indicated that the sa'e deed in dispute had been used by the parties to the execution, case No. 300 of 1967 and suit No. 96 of 1968. 5. The submission made by Shanker Lal was resisted by Smt. Dano. It was contended on her behalf that a complaint in respect of offences Under Sections 465 and 419 IPC, at her instance, was not barred by Section 195 Code of Criminal Procedure. In any case a complaint for an offence u/s 419 IPC is certainly not covered by the bar created by Section 195(1)(c) of the Code of Criminal Procedure. After considering the arguments raised by the parties, the learned Magistrate came to the conclusion that even though the alleged forgery is said to have been committed long before the institution of the civil suit, it was for the court concerned to file a complaint in accordance with the provisions of Sections 476 and 479-A Code of Criminal Procedure as the sale deed in question had been relied upon by the accused in judicial proceedings. It also appears the Magistrate was inclined to the view that the offence u/s 419 alleged to have been committed by Shanker Lal was not an offence which was distinct from the offence u/s 465 IPC alleged to have been committed by him. It also appears the Magistrate was inclined to the view that the offence u/s 419 alleged to have been committed by Shanker Lal was not an offence which was distinct from the offence u/s 465 IPC alleged to have been committed by him. In such circumstances the entire complaint was barred by Section 195(5)(c) of the Code of Criminal Procedure. He accordingly made the order discharging Shanker Lal. The order passed by the Magistrate was affirmed in revision by the ADM (J) and now Smt. Dano has come up before this Court and prays that the order of the Judicial Magistrate dt. 2-3-1970, discharging the accused Shanker Lal be set aside and that he be tried in accordance with law. 6. A perusal of the complaint lodged by Smt. Dano indicates that according to her the sale deed in question was got fabricated on 1-8-1963, long before the sale deed was used by Shanker Lal in the case giving rise to proceedings in execution case No. 300 of 1967 and the suit (No. 96 of 1968) for cancellation of the sale deed filed by Smt. Dano. 7. Section 195(1)(c) provides that no court shall take cognizance of any offence described in Section 463 or punishable Under Sections 471, 475 or Section 476 of the 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. It may be taken that an offence u/s 465 is an offence of the nature described in Section 463 IPC, but before the bar created by Section 195(1)(c) can become operative, it has to be shown that such an offence, in relation to a document which had been produced or given in evidence, is said to have been committed by a party to some proceeding in any court. Learned Counsel for the complainant urged that according to the complaint, the offences in question had been committed in the year 1963 when no judicial proceedings were pending and as such it cannot be said that the offence had been committed by a party to any proceeding in any court. Learned Counsel for the complainant urged that according to the complaint, the offences in question had been committed in the year 1963 when no judicial proceedings were pending and as such it cannot be said that the offence had been committed by a party to any proceeding in any court. Accordingly, the provisions of Section 195(1)(c) did not bar the Magistrate from taking cognizance for offences Under Sections 465 and 419 IPC. Learned Counsel for Shanker Lal, on the other hand, contended that in this case it cannot be disputed that the offence is alleged to have been committed by him and that he actually was a party to both the proceedings viz. execution case No. 300 of 1967 and suit No. 96 of 1968. It follows that the offence u/s 465 IPC, in respect of a document produced or given in evidence in proceedings before a court, is alleged to have been committed by a party to those proceedings and the bar created by Section 195(1)(c) would be operative. So far as the offence u/s 419 IPC is concerned, learned Counsel relied upon certain decisions and urged that in the circumstances of the case, the same could not be considered to be an offence distinct and independent of the offence u/s 465 and therefore the cognizance in respect of that offence also would be barred by Section 195(1)(c) of the Code. 8. In support of his submission, learned Counsel for Shanker Lal relied upon the case of Emperor v. Bhawani Das ILR 38 All. 169 wherein a Division Bench of the Court observed as follows: The words used in Section 195(1)(c), 'when such offence has been committed by a party to any proceeding in any court', refer not to the date of the commission of the alleged offence, but to the date on which the cognizance of the criminal court is invited. Hence, when once a document has been produced or given in evidence before a court, the sanction of that court, or of some other court to which that court is subordinate, is necessary before a party to the proceeding in which document was produced or given in evidence can be prosecuted, notwithstanding that the offence alleged was committed before the document came into court, at a time when the person complained against was not a party to any proceeding in court. 9. 9. He also cited the following observations made by a single Judge of this Court in the case of Vivekanand Nand Kishore Vs. State, AIR 1969 All 189 : On behalf of the slate it was however contended that as the offence of forgery as described in Section 463 IPC was committed prior to the Applicant becoming a party to the proceedings in the court of the Compensation Officer, Section 195(1)(c) had no application to this case. I do not agree for the simple reason that there is nothing in the section to warrant such an interpretation. All that that section lays down is that if a forged document is produced or given in evidence by a party to any proceeding in any court, the bar laid down in that and section is attracted and for that purpose it is immaterial whether the forgery was committed prior or subsequent to the initiation of the said proceeding. Thus on the plain terms of the section, I am satisfied that the first contention of the Applicant's learned Counsel is correct. 10. Aforementioned bases do support the submission made by the learned Counsel for Shanker Lal, However, the Supreme Court in the case of Patel Laljibhai Somabhai Vs. The State of Gujarat, AIR 1971 SC 1935 has interpreted the section differently. After a is cussing the purpose of enacting Sections 195(b)(c) and 467, their Lordships at page 040 observed as follows: It therefore appears to us to be more appropriate to adopt the 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.... 11. In a case where the forgery is alleged to have been committed long before the institution of civil proceeding in which the accused happened to be a party, it cannot be said that the forgery was committed by him a his character as a party to that civil proceeding. In this view of the matter, the law laid down in the case of Emperor v. Bhawani Das, cannot be said to be good law. In this case there is absolutely no material on the, record to show that Shanker Lal committed the alleged offence in the capacity as party to any judicial proceeding. Accordingly following the decision of the Supreme Court. In this case there is absolutely no material on the, record to show that Shanker Lal committed the alleged offence in the capacity as party to any judicial proceeding. Accordingly following the decision of the Supreme Court. I hold that Section 195(c) of the Code of Criminal Procedure does not bar the trial of Shanker Lal either for an offence u/s 465 or Section 419 IPC. 12. Learned Counsel for Sharker Lal then placed reliance on Section 195(1)(b) of the Code of Criminal Procedure which provides that no court is to take cognizance of any offence punishable under any of the following sections of the same Code, namely, Sections 193 to 196, 199, 200, 205 to 211 and 228, 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 or of some other court to which such court is subordinate. Although in the complaint it was recited that Shanker Lal had committed offences u/s 465/419 IPC but considering the circumstances of the case, in substance the allegations in the complaint amounted to an offence u/s 193 IPC which provides that whoever intentionally gives false evidence in any stag of judicial proceeding, or fabricates if also 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 seven years and shall also be liable to fine. As in this caste the complaint had not been filed by the court before which the fabricated document was intended to be used, its cognizance was barred u/s 195(1)(b) of the Code. 13. Learned Counsel pointed out that before the bar mentioned in Clause (b) of Section 195(1) of the Code becomes operative it is not necessary that the evidence should have been fabricated or given by a party to proceeding, as is the case with the bar created by Section 195(l)(c) of the Code. According to this section, the bar becomes operative the moment the offence u/s 193 IPC is alleged to have been committed in relation to any proceeding in any court. According to this section, the bar becomes operative the moment the offence u/s 193 IPC is alleged to have been committed in relation to any proceeding in any court. The expression, "in relation to any proceeding in; any court", is very wide and covers also the case where the offence is said to have been committed in relation to any proceeding in a court, instituted subsequently. Since in this case Shanker Lal tendered the document which is alleged to have been forged, as evidence before a court, it follows that he intentionally gave false evidence in a judicial proceeding and in any case fabricated the false evidence for being used in that proceeding. Accordingly, the provisions of Section 195(1)(b) are fully applicable and cognizance with regard to such an offence can be taken only on the complaint in writing of the court before which the relevant proceeding relating to which offence had been committed were pending. 14. I may point out that this is a new point which the learned Counsel for the Applicant seeks to urge before me. This point was not raised by him before any of the two courts below. 15. In the case of Basir-ul-huq and Others Vs. The State of West Bengal, AIR 1953 SC 293 it has been observed that "Section 195 of the Code of Criminal Procedure does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, but its provisions cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which complaint of the court or of the public servant is required." 16. Relying upon these observations, learned Counsel for the Applicant (?) urged that notwithstanding that in the complaint no reference whatsoever was made to a judicial proceedings or to the fact that the forged sale deed had been tendered in evidence in a court of law, considering the circumstances of the case, an offence u/s 193 IPC. in relation to proceedings before a civil court, had been alleged. In the circumstances the bar created by Section 195(b) became operative and barred the learned Magistrate from taking cognizance of the alleged offence except on a complaint made by the court concerned. 17. in relation to proceedings before a civil court, had been alleged. In the circumstances the bar created by Section 195(b) became operative and barred the learned Magistrate from taking cognizance of the alleged offence except on a complaint made by the court concerned. 17. I am unable to accept this submission made by the learned Counsel for Shanker Lal. The expression "giving false evidence" as used u/s 193 IPC has been defined u/s 191 IPC in following words: Whoever, being legally bound by an oath or by an express provision of law to state in truth, or being bound by law to make a declaration upon any subject, makes any statement which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. This means that the words "whoever intentionally gives false evidence in any stage of a judicial proceeding" used in Section 193, refer only to oral evidence given by a person in any stage of judicial proceeding. Accordingly, merely because a false or fabricated document has been produced before a court it cannot be said that the person producing the document has given 'false evidence' as contemplated by Section 193 IPC in the case. 18. So far as the contention of the learned Counsel for the Applicant (?) that the allegations made in the complaint made out that the Applicant fabricated false evidence for the purpose of using it in a judicial proceeding, is concerned, it may be assumed that if Shanker Lal got the sale deed fabricated, he did so with the intention of using it in a judicial proceeding if and when necessity for the same arose and that in that sense the offence alleged would be covered by Section 193 of the IPC. However, Section 195(1)(b) of the Code of Criminal Procedure bars a Magistrate from taking cognizance of an offence u/s 193 IPC only when such an offence is said to have been committed in or in relation to some proceeding in a court. It is not and cannot be anybodys case that the offence alleged to have been committed in this case was committed in some proceeding before a court. Main question that, therefore, remains to be considered is whether the alleged offence had been committed by the Applicant in relation to a proceeding in a court. It is not and cannot be anybodys case that the offence alleged to have been committed in this case was committed in some proceeding before a court. Main question that, therefore, remains to be considered is whether the alleged offence had been committed by the Applicant in relation to a proceeding in a court. Learned Counsel for the Applicant (?) urged that the expression "in relation to any proceeding in any court" used in Section 195(b) Code of Criminal Procedure covers also a case where the evidence was fabricated with a view to use it at some stage of judicial proceeding, even though at that time no proceedings before some court had actually commenced. In support of this submission, he relied upon the case of Har Prasad Vs. Hans Ram and Others, AIR 1966 All 124 where a learned Judge of this Court observed as follows: Where the allegations made in the complaint Under Sections 467 and 471 IPC were that a forged sale deed was got executed and registered in pursuance of a criminal conspiracy amongst three opposite parties, one of whom filed an application for the mutation proceedings on the basis of that forged sale deed, there was a close nexus between the conspiracy amongst the opposite parties, its resulting in a forged sale deed and the subsequent filing of the mutation application on its basis, all of which formed various links off the same chain. It must, therefore, be held that the alleged fictitious sale deed was fabricated as false evidence for the purpose of being used in a judicial proceeding and the offence being committed in relation to proceeding in court; its cognizance was barred on a private complaint u/s 195(1)(b) of the Code. To the same effect are the observations made by a Division Bench in the case of Hari Nath Singh v. State 1984 AWR 232 wherein it has been stated that: For bar created u/s 195(1)(b) Code of Criminal Procedure it is enough to prove a clear connection between the offence and the legal proceedings on account of which the aforesaid bar is invoked and that it, is not necessary that the legal proceedings must be pending at the time the offence, the cognizance of which is barred, was committed. 19. 19. Section 193 of the IPC provides that whoever intentionally fabricates false evidence for the purpose of being used in any stage of judicial proceeding shall be punished with imprisonment. This section covers within its ambit the oases where the false evidence is fabricated for the purposes of particular judicial proceeding which is pending or which may be initiated. It also covers a case where a false evidence has been fabricated with an idea that if it becomes necessary it may be used in some judicial proceeding (not Contemplated at that stage) initiated on a later date. In my opinion Section 195(1)(b) of he Code of Criminal Procedure which provides that cognizance of an offence u/s 193 IPC shall be taken only on a complaint made in writing by the court concerned, covers only such offences u/s 193 IPC where (1) false evidence is fabricated for being used in particular judicial proceeding which is pending or (2) when false evidence is fabricated with a view to its Being used in a particular judicial proceeding which is intended to be initiated In a particular court. The expression in relation "to any proceedings in any court" will not, in my opinion, cover cases of the third type namely where the false evidence has been fabricated with the idea that if it becomes necessary the fabricated evidence may be used in some judicial proceeding Which may be initiated subsequently. In a case where false evidence is fabricated with a view; to be used in some judicial proceeding if and when an occasion for its use arises, without having in view a particular judicial proceeding, though an offence u/s 193 IPC is complete the moment false evidence is fabricated, there will be no court which will be able to file a complaint as required by Section 195(1)(b) of the Code of Criminal Procedure. In the case of Hari Nath Singh v. State 1964 AWR 232 relied upon by the learned Counsel for Shanker Lal the allegation made in the complaint on which cognizance had been taken was that the accused in collusion with the two Lekhpals got fictitious entries made in the Khasras for the year 1359 F. to 1370 F. and filed an application for correction of papers in the court of Tahsildar. Further, in collusion with the Reader of the court of the Tahsildar, he got his application entered in the register of the 'court as one having been filed on 5-11-1962. It will thus be seen that there was a definite allegation in the complaint that an offence u/s 21 IPC had been committed by the Lekhpal and the Reader of the Court, in relation to the proceedings in the court of the Tahsildar, in other words the false evidence was fabricated for being used in connection with a particular proceeding which was pending or which was intended to be initiated. This case, therefore, duly fell within the ambit of Section 195(1)(b) of the Code of Criminal Procedure. 20. Similarly, in the case of Har Prasad v. Hans Ram (supra), the complaint itself indicated that the alleged sale deed had been forged and got registered in pursuance of a criminal conspiracy amongst three opposite parties, one of whom made an application for initiating mutation proceedings on its basis. The complaint indicated that the object of forgery, was to use false evidence in a particular proceedings (mutation proceeding which was intended to be initiated inconsequence of that forgery). Accordingly, cognizance of the offence could be taken on the basis of a complaint in writing made by the concerned mutation court. 21. In the case before me there is absolutely no allegation in the complaint that the alleged fabrication of false evidence was done with a; view q use the same in proceedings before some particular court. Merely because the fabricated evidence was used in subsequent judicial proceeding it does not mean that it was fabricated with a view that it will be used in particular judicial proceedings. In the circumstances even though an offence u/s 193 IPC which does not depend upon initiation of proceedings before a court, was complete the moment the false document was fabricated, there was no court which could have filed a complaint against the accused. Surely it could not be the intention of the legislature that even though an offence has been committed its cognizance should not be taken. Surely it could not be the intention of the legislature that even though an offence has been committed its cognizance should not be taken. The idea seems to be that in a case where an offence u/s 193 IPC has been committed in relation to proceedings of a particular court, its cognizance should be taken only when that court makes a complaint otherwise the normal rule of taking cognizance of an offence would apply and the Magistrate would be free to take cognizance of the offence on a complaint made by any one. 22. I am accordingly of the opinion that even Section 195(1)(b) did not bar the Magistrate from taking cognizance of offence u/s 465 and 490 IPC in this case and the revision application deserves to be allowed. 23. Learned Counsel for Shanker Lal also brought it to my notice that the civil suit filed by the present complainant for cancellation of the sale deed dt. 1-8-1963 has since been dismissed. Accordingly, in suit inter parts it has been held that the document in question was not a forged document. After such a finding has been recorded by a civil court, no useful purpose will be served by setting aside the impugned order. Learned Counsel for Smt. Dano contended that it is possible that Smt. Dano might have filed an appeal against the order dismissing her suit, hence it may not be possible to say that the decree of the trial court dismissing her suit has become final between the parties. There is at present no material before me to entertain this submission made on behalf of both the parties. The only controversy raised before the trial court and with which I am concerned, was whether the present proceedings were barred by Section 195(1)(b) or (o) of the Code of criminal Procedure. If he be so entitled, it will be open to Shanker Lal to move the learned Magistrate and obtain an order of discharge on the basis of the civil court decree or on any other ground. 24. The revision there are succeeds and is allowed. The order passed by the Judicial Magistrate Sadar dt. 2-3-1970 is set aside. He is directed to proceed further with the case in accordance with law.