S. C. Srivastava v. State — 1979 DIGILAW 1207 (ALL)

JUDGMENT V.N. Varma, J. 1. THESE are six petitions under Section 482 CrPC (details given below), which I propose to dispose off together as they raise similar questions of law and fact. 1.Petition no. 1655 of 1979. Filed by Suresh Chandra Srivastava for quashing the proceedings of Criminal Case no. 167 of 1975. 2.Petition no. 1656 of 1979.-Filed by Suresh Chandra Srivastava for quashing the proceedings of Criminal Case no. 168 of 1975. 3.Petition no. 1657 of 1979.-Filed by Suresh Chandra Srivastava and Bishan Swarup for quashing the proceedings of Criminal Case no. 169 of 1975. 4.Petition no. 1690 of 1979.-Piled by Shanker Lal Bhargava for quashing the proceedings of Criminal Case no. 167 1975. 5.Petition no. 1691 of 1979.-Piled by Shanker Lal Bhargava for quashing the proceedings of Criminal Case no. 168 of 1975. 6.Petition no. 1692 of 1979.--Filed by Shanker Lal Bhargava for quashing the proceedings of Criminal Case no. 169 of 1975. 2. FROM the above it will thus appear that the arrangement of various persons as accused in the aforesaid three cases are as follows :- 1.Cr. Case no. 167 of 1975. (1) Suresh Chandra Snvastava, (2) Shanker Lal Bhargava. 2.Cr.Case no. 168 of 1975. (1) Suresh Chandra Srivastava, (2) Shanker Lal Bhargava. 3.Cr. Case no. 169 of 1975. (1) Suresh Chandra Srivastava, (2) Shanker Lal Bhargava, (3) Bishan Swarup. At the relevant time (year 1967) Shanker Lal Bhargava was officiating as Stamp Reporter in the office of High Court at Allahabad, while Suresh Chandra Srivastava and Bishan Swarup were clerks of Advocates. The S.O. Judicial Department, High Court made a report to the Registrar that court fee stamps of the value of Rs. 3,007.50 p. (on 15th sheets) were missing from the Judicial file of F. A. no 186 of 1960. On the basis of that report an inquiry was instituted and it was discovered that three court fee stamps of the value of Rs. 1000/- each had been reused in F. A. no. 281 of 1967, F. A. no. 2832 of 1967 and F. A. no. 357 of 1967. The inquiry further revealed that in several other cases also used court fee stamps had [been reused. 1000/- each had been reused in F. A. no. 281 of 1967, F. A. no. 2832 of 1967 and F. A. no. 357 of 1967. The inquiry further revealed that in several other cases also used court fee stamps had [been reused. The Registrar suspected (that a well organized gang of racketeers was operating in the High Court to defraud the government by surreptitiously removing from the judicial files of decided cases used court fee stamps and by reusing them in fresh cases and, be, therefore, with the permission of Honourable the Chief Justice reported the [matter to the then Inspector General of [Police, Uttar Pradesh. The I. G. Police ordered C.I.D. U. P. to investigate into the matter. After investigating into the matter the C.I.D. submitted three charge-sheets for offences under Secs. 262,263, 467, 471, 420 and 120-B IPC and on the basis of those charge sheets three cases, namely, Cr. Case no. 167 of 1975, Cr. Case no. 168 of 1975 and Cr. Case no. 169 of 1975 were instituted. 3. THE case against Shanker Lal Bhargava in all the three cases was that us Stamp Reporter his duty was to check the court fee stamps filed in various appeals, but he did not do his duty honestly and in pursuance of a criminal conspiracy hatched between several persons, he allowed, reusing of the used court fee stamps with a view to make illegal gain. Regarding Suresh Chandra Srivastava and Bishan Swarup it was said that they were also parties to the aforesaid conspiracy and had actually reused the used court fee stamps in filing F. A. no. 281 of 1967, 282 of 1967 and 357 of 1967. 4. ALL the three persons-Shanker Lal Bhargava, Suresh Chandra Srivastava and Bishan Swarup-were summoned by C. J. M. Allahabad to stand their trial in the cases referred to above. They put in appearance in court and raised a preliminary objection to the framing of charges against them. They contended that no charge could be framed against them in any of the three cases because the very institution of these cases against them was illegal and not in accordance with law. They pleaded the bar of Section 195 CrPC against their prosecution. The learned Magistrate repelled their objection in all the cases and ordered that charges shall be framed against them according to the allegations and evidence on record. They pleaded the bar of Section 195 CrPC against their prosecution. The learned Magistrate repelled their objection in all the cases and ordered that charges shall be framed against them according to the allegations and evidence on record. They felt dissatisfied with the orders passed by the Magistrate and challenged the correctness of the same in this court by filing petitions nos. 1655 of 1979, 1656 of 1979, 1657 of 1979, 1690 of 1979, 1691 of 1979 and 1692 of 1979 as mentioned above. At the very outset the learned counsel for the State contended that these petitions were incompetent as the applicants did not assail the impugned orders by way of revision. In other words, according to the learned counsel, the applicants could have approached this court by way of Section 482 CrPC only after they had filed revisions against the impugned orders and their revisions had failed. It is true that generally speaking the power under Section 482 is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party, but at the same time it is equally true that nothing in the Code which would include sub section (1) of Sec. 397 also (regarding the right to file a revision) "shall be deemed to limit or affect the inherent powers of the High Court." It would thus follow that merely because the applicants did not seek redress of their grievance by filing revisions against the impugned orders, their right to approach this court under Section 482 CrPC would not stand barred. In the interest of justice, the court can always exercise its inherent powers, to give relief to an aggrieved party. In my opinion, the present applications are legally maintainable and the objections raised by the learned State counsel regarding their non-maintainability are bereft of substance. 5. THE learned counsel for the State next contended that the bar of Section 195 CrPC was not available to the applicants and the petitions filed by the applicants was nothing but an abuse of the process of the court. In this connection he contended that as no proceeding in any court had been pending at the time when the three court fee stamps of the value of Rs. In this connection he contended that as no proceeding in any court had been pending at the time when the three court fee stamps of the value of Rs. 1000/- each had been reused and, therefore, it was not open to the applicants to take shelter behind Section 195 CrPC and that the magistrate was not competent to take cognizance against them in the absence of a complaint in writing by this court. This contention of the learned counsel also seems to me to be without substance. It could have had some relevance under the old Code which contemplated the filing of a document in respect of which an offence had been committed in a proceeding pending in a court. The scope of Section 195 in the new Code has now been very much widened. Its relevant portion reads as follows :- "195. (1) No court shall take cognizance- (a) (i)...........(ii)...........(iii)......except, (b) (i).......................... (ii) of any offence described in Sec. 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 or produced 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) of sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate." 6. ON a plain reading of the above it is thus clear that it is not necessary that a proceeding in court should actually have been pending and in that proceeding a document in respect of which an offence had been committed, should be filed to attract the bar of Section 193 CrPC. In my opinion, even if a document in respect of which an offence has been committed itself initiates a proceeding in court, that should be sufficient to attract the bar of Section 195 CrPC. In Vivekanand Nand Kishore v. State, AIR 1969 All. 189 , an application accompanied by a vakalatnama was filed before the Compensation Officer for withdrawal of some money. That vakalatnama was found to be forged. A case under Sections 406, 420, 467 and 471 IPC was filed against the person filing the application and the vakalatnama. In Vivekanand Nand Kishore v. State, AIR 1969 All. 189 , an application accompanied by a vakalatnama was filed before the Compensation Officer for withdrawal of some money. That vakalatnama was found to be forged. A case under Sections 406, 420, 467 and 471 IPC was filed against the person filing the application and the vakalatnama. Even though the application and the vakalatnama had initiated the proceedings in Court, it was held that the charge-sheet filed against the person concerned was barred under Section 195 Cr.P.C. In the same way in Beni Prasad v. State, 1977 AWC 328, a person filed a complaint to the effect that some persons had impersonated him before the Tahsildar by moving an application for issue of Bhumidhari sanad and had wrongly obtained the sanad by playing a fraud on the tahsildar. Even though the forged application had initiated the proceedings in regard to the issue of Bhumidhari sanad, it was held that the bar of Section 195 Cr.P.C. was available to the accused and the magistrate could have taken cognizance only on the basis of a complaint filed by the Tahsildar. in Rajendra Prakash v. State, 1969 AWR 777, a similar view was taken by this court. The learned counsel for the State drew my attention to certain rulings in support of his contention that to invoke the application of Section 195 CrPC at was necessary that a proceeding should lave been pending in court and in that proceeding a document in respect of which an offence described in Section 463 punishable under Section 471/ Section 475 or 476 IPC has been committed is produced or given in evidence, those rulings are : Mohan Lal v. The State of Rajasthan, AIR 1974 SC 299 , Legal Remembrancer of Government of West Bengal v. Haridas Mundra, AIR 1976 SC 2225 and Dr. S. L. Goswami v. High Court of M. P., AIR 1979 SC 437 , I have carefully gone through these rulings and I may say here at once that they are not relevant to the point raised by the learned State counsel They are all cases decided under the old Cr.P.C. In the old Code the relevant portion of Section 195 Cr.P.C. was differently worded than the corresponding portion of that section in the new Code. In the old Code to attract the bar of Section 195 Cr.P.C. it was necessary that the document in respect of which an offence has been committed should have been filed by a party to a proceeding in court. In all the three Supreme Court cases referred to above it was field that in order to attract Section 195 (l)(c) the offence in respect of the document should be alleged to have been committed by the party to the proceeding in his character as such party. 7. THUS, after a perusal of what I have mentioned above, I am certain in my mind that to attract the bar of Section 195 (1) (b) (ii) of the new Code it is not necessary that a proceeding should have been pending in court from before and in that proceeding a document in respect of which an offence has been committed should be produced on given in evidence. The bar of the above section would be attracted even if such a document itself initiates a proceeding in a court. 8. AFTER having disposed of the preliminary points raised by the learned State counsel I now take up the case on merits. All the applicants have been charge sheeted for offences under Sections 262, 263, 467, 471, 420 and 120 B IPC. It is said that they entered into a conspiracy and in persuance of that conspiracy stole used court fee stamps of the value of Rs. 3000/-and reused the same in filing appeal Nos. 281 of 1967, 282 of 1967 and 357 of 1967 and thereby defrauded and cheated the government. The contention of the applicants is that the court below was not competent to take cognizance of the offences alleged to have been committed by them by reason of the provisions contained in Section 195 (1) (b) (ii) and (iii) CrPC and as such the charge sheets filed against them be quashed. I have already quoted Section 195 (1) (b) (ii) and (iii) in the earlier portion of this judgment. I have already quoted Section 195 (1) (b) (ii) and (iii) in the earlier portion of this judgment. It says that no court shall take cognizance 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 or of any criminal conspiracy to commit, or attempt to commit, or the abetment, of any offence so specified except on the complaint in writing of that court, or of some other court to which that Court is subordinate. In the instant case, admittedly no complaint had been filed against the applicants by this court-the case against them had started at the instance of the police. Therefore, per se and on the face of it, the prosecution of the applicants under Sections 471 and 120-B IPC was without jurisdiction. The learned counsel for the applicants contended that even though the other sections under which they are being prosecuted, namely, Sections 262, 263, 467, 380 and 420 CrPC are not apparently covered by Section 195 (1) (b) (ii) yet the bar contained in this section in regard to their prosecution under these sections would come in the way of the prosecution because the offences covered by these sections are intermingled with the offence under Sections 471 IPC and if the bar of Section 195 would be attracted! to the prosecution of the applicants) under Section 471 IPC it will equally apply to their prosecution under Sections 262, 263, 467, 380 and 420 IPC. I am in agreement with this contention of the learned counsel in part. Section 462 IPC defines 'forgery' while Sections 465, 466, 467 and 469 are penal sections providing penalties under different set of facts. Therefore, all complaints in respect of 'forgery' as defined in Section 463 IPC if detected, in respect of a document which has already been filed in any proceeding in any court can take cognizance of only in accordance with Section 195 (1) (b) (ii). Therefore, as it was, the Court below was not competent to take cognizance of the offence under Section 467 IPC against the applicants. Therefore, as it was, the Court below was not competent to take cognizance of the offence under Section 467 IPC against the applicants. The learned counsel for the applicants contended that on the same reasoning as above the court below was not competent to take cognizance of the offence under Section 420 IPC also against the applicants. According to him, the offence under Section 420 IPC also was cognate to the offence under Sections 467 and 471 IPC. I am afraid I cannot persuade myself to agree with this contention of the learned counsel. Offences under Sections 467 and 471 IPC relate to document while an offence under Section 420 IPC relates to an offence against property. In my view, the offence alleged to have been committed by the applicants under Section 420 IPC was quite distinct from the offences alleged to have been committed by them under Sections 467 and 471 IPC. In truth and substance the offence under Section 420 IPC does not fall under the category of sections mentioned in Section 195 CrPC. The Magistrate, was, therefore, competent to take cognizance of the offence under Section 420 IPC against the applicants. In the sane way, the Magistrate was again competent to take cognizance of the offence under Section 380 IPC also against the applicants. The offence under Section 380 IPC was also quite distinct from the offences under Sees. 467 and 471 IPC. The case against the applicants under Section 380 IPC was founded on the allegations that they had stolen stamps worth Rs. 3000/- from the judicial files of decided cases and then reused the same for filing appeal Nos. 281 of 1967, 282 of 1967 and 357 of 1967. Obviously, the offence under Section 380 IPC allegedly committed by the applicants was quite distinct from the offences committed by them under Sections 467 and 471 IPC. 9. LASTLY, I come to the offences alleged to have been committed by the applicants under Sections 262 and 263 IPC. The charge against them under Section 262 IPC was to the effect that with a view to cause loss to Government they knowingly reused, used court fee stamps, worth Rs. 3000/- in filing appeal nos. 281 of 1967, 282 of 1967 and 357 of 1967. The charge against them under Section 262 IPC was to the effect that with a view to cause loss to Government they knowingly reused, used court fee stamps, worth Rs. 3000/- in filing appeal nos. 281 of 1967, 282 of 1967 and 357 of 1967. And the charge against them under Section 262 IPC was that with a view to cause loss to government they erased or removed the marks, writings and impressions from the court fee stams of Rs. 3000/- which had earlier been used in other cases. Seeing the facts on which these charges are based I think the offences under Sections 262 and 263 IPC are again quite distinct from the offences committed by them under Sections 467 and 471 IPC. 10. THE learned counsel for the applicants drew my attention to the ruling reported in Dr. S. Dutta v. State of U. P., 1966 AWR 844, and urged that if the court below was not competent to take cognizance of the cases against the applicants under Sections 467 and 471 IPC then it was equally not competent to take cognizance against the applicants under Sections 262 and 263 IPC also. According to him, the filing of charge-sheets against the applicants under Sections 262 and 263 IPC was just a device to evade the bar of Section 195 CrPC and, therefore, in all fairness this court should not permit the prosecution to take recourse to such a device and thereby deprive the applicants of their right to take shelter behind Section 195 CrPC. I have gone through the facts of Dutta's case, with pleasure and profit and I do not think that this case in any way helps the applicants. Dr. Dutta was examined as an expert witness by the defence in a sessions case. He claimed to hold a diploma from the Imperial College of Science and Technology, London, to the effect that he had specialised in the subject of criminology. The credentials of Dr. Dutta were challenged. The Sessions Judge asked Dr. Dutta to produce all his academic diplomas and certificates for his inspection. He produced the aforesaid diploma which was found to be forged. A report, was, therefore, lodged against him with the police and eventually Dr. Dutta was prosecuted under Sections 465/471 IPC. Dr. The credentials of Dr. Dutta were challenged. The Sessions Judge asked Dr. Dutta to produce all his academic diplomas and certificates for his inspection. He produced the aforesaid diploma which was found to be forged. A report, was, therefore, lodged against him with the police and eventually Dr. Dutta was prosecuted under Sections 465/471 IPC. Dr. Dutta objected that he could not be legally prosecuted as the alleged facts disclosed an offence under Section 193 IPC and a complaint in writing of the court was required under Section 195 CrPC before cognizance could be taken. The trial court rejected his contention and held that there was no bar to his trial under Sections 465/471 IPC. Dutta filed revisions against the order in the court of sessions and in the High Court but without success. He then went up in appeal to the Supreme Court. The Supreme Court held that the offence which Dr. Dutta actually committed was an offence under Section 196 IPC and not an offence under Sections 465 and 471 IPC. His prosecution in the absence of a complaint in writing by the court concerned was, therefore, found bad in law. The court observed 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 CrPC. On the basis of this observation the learned counsel for the applicants also urged that it was not open to the prosecution to introduce charges against the applicants under Sections 262 and 263 IPC when the charge against them under Section 471 IPC already existed. This argument of the learned counsel is bereft of substance. I have already held above that offences under Sections 262 and 263 are quite distinct from offences under Sections 467 and 471 IPC. Besides this, the prosecution in this case had not done anything to cause prejudice to the applicants. It charge sheeted the applicants not only under sections 467 and 471 IPC but it charge sheeted them under Secs. 262 and 263 IPC also. It charge sheeted them for all the offences which it thought that the applicants had committed. Besides this, the prosecution in this case had not done anything to cause prejudice to the applicants. It charge sheeted the applicants not only under sections 467 and 471 IPC but it charge sheeted them under Secs. 262 and 263 IPC also. It charge sheeted them for all the offences which it thought that the applicants had committed. The learned counsel for the applicants lastly contended that as the offences alleged to have been committed by the applicants were committed in pursuance of a conspiracy but as the court below is not competent to look into the question of conspiracy because of the bar of Section 195 CrPC, this court should quash the proceedings of all the cases because there is no evidence to connect the applicants with those offences. It is true that the court below is not competent to look into the question of conspiracy but this is a thing to which no undue importance should be attached at this stage. Uptil now evidence of witnesses has not been recorded. Question of sufficiency or insufficiency of evidence will arise only after the statements of the witnesses have been recorded. At the moment all that we have to see is whether on the materials present on record a prima facie case against the applicants is made out or not. The court below felt that on the basis of the material present on record a prima facie case is made out against the applicants, and at this stage I see no reason to disagree with it on this point. 11. IN the result, I allow these applications in part and quash the prosecution of the applicants under Sections 467, 471 and 120-B IPC in the various cases filed against them. Their prosecution in those cases under Sections 263, 263, 380 and 420 IPC will, however, go on. The Magistrate is directed to dispose of the cases against the applicants as expeditiously as possible. The stay orders in all the cases shall stand vacated. Applications partly allowed.