Jai Narain Pathak v. Ganesb Pathak — 1979 DIGILAW 938 (ALL)

Judgment S.J. Hyder, J. 1. THIS is an application filed by the complainant against the order of the Munsif Magistrate dated 31-8-78. By means of the said order, the Trial court purporting to exercise its powers under section 245 (2) of the Code of Criminal Procedure dismissed the complaint of the applicant and discharged the accused in the case who are now opposite parties before this Court. 2. THE applicant has a brother named Rajjan who lives at Bombay. A suit had been filed by Rajjan against Ganesh Dutt Pathak for the recovery of certain sum on the basis of a pronote dated 19-10-1969 in the city civil court at Bombay. THE said suit was decreed ex-parte on 3-8-1972. THE plaintiff in the said suit was held entitled to recover a sum of Rs. 11,000/- from Ganesh Dutt Pathak. The decree of the trial court was transferred for execution to the Civil Judge, Gyanpur. He ordered the attachment of properties of Ganesh Dutt Pathak and the said propery was attached on February 22, 1973. Ganesh Dutt Pathak made an application in the city civil court, Bombay for setting aside the exparte decree. Along with that application he filed a certified copy of a compromise allegedly arrived at between him and another person on 19-10-69 in a criminal case under sec. 323 pending in the court of the Nyaya Panchayat, Prithivipur in the district of Jaunpur. The case was decided by the Nyaya Panchayat on the basis of the said compromise. The certified copy of the compromise was filed by Ganesh Dutt Pathak in order to show that the pronote which was the basis of the suit before the city civil court, Bombay was a fictitious document as it also purported to have been executed on 19-10-1969. 3. THE exparte decree was set aside by the city civil court and the civil suit is still said to be pending before the said court. 4. THE applicant Jai Narain Pathak then moved a number of applications before the district authorities at Jaunpur complaining that actually there was no complaint which was pending before the Nyaya Panchayat in the year 1969, and that the entire proceedings culminating in the compromise dated 19-10-1969 have been fabricated by the complainant in collusion with the members of the Nyaya Panchayat. One of such application was referred for decision to the Chief Judicial Magistrate, Jaunpur. One of such application was referred for decision to the Chief Judicial Magistrate, Jaunpur. He rejected the said application by his order dt. 25-4-1975. THE complainant preferred a revision against the said order which was dismissed for non prosecution. Thereupon the complainant applicant filed the present complaint in the court of the Judicial Magistrate against the ten opposite parties including the persons who were members of the Nyaya Panchayat in the year 1969. In the complaint it was again averred that no criminal case was filed before the Nyaya Panchayat, Prithvipur in the year 1969. The records showing that any such case was filed and decided had been forged and fabricated by opposite party no. 1 who had entered into a criminal conspiracy with opposite parties nos. 2 to 10, who had assisted opposite party no. 1 and had actually participated in fabricating the said documents and the compromise dated 19-10-1969, with a view to defeat the claim of his brother Rajjan pending in the city civil court, Bombay. In para 13 of the complaint it was specifically stated that a certified copy of the compromise which had been filed in the city civil court, Bombay was a forged and fabricated document and had been brought in existence for the object given above. On the basis of these allegations, the applicant claimed that opposite parties nos. 1 to 10 may be punished for the offences referred to in sections 120-B, 465, 466, 468 and 471 of the Indian Penal Code. 5. THE trial Magistrate recorded complainant's evidence under section 202 of the Code of Criminal Procedure. He passed an order on September 25, 1976 summoning the opposite parties nos. 1 to 10 to stand their trial for the aforesaid offences. 6. AT this stage, an application was presented on behalf of the opposite parties. In the said application it was, interalia, stated that the jurisdiction of the court to take the congnizance of the complaint was barred under section 195 (1) (b) (ii). The contention raised on behalf of the opposite parties was upheld by the trial Magistrate by his order dated 31-8-1978. He dismissed the complaint filed by the applicant as not maintainable and passed an order in favour of opposite parties nos. 1 to 10. Feeling himself aggrieved, the applicant has now come up in revision to this Court. The contention raised on behalf of the opposite parties was upheld by the trial Magistrate by his order dated 31-8-1978. He dismissed the complaint filed by the applicant as not maintainable and passed an order in favour of opposite parties nos. 1 to 10. Feeling himself aggrieved, the applicant has now come up in revision to this Court. On behalf of the applicants, two points have been pressed upon me. In the first place, it was urged that the opposite parties having been summoned after preliminary investigation under section 200 Cr. P.C., the procedure prescribed under section 244 Cr. P.C. must have been gone through and the evidence produced by the applicant should have been recorded by the trial court before passing an order of discharge. It is next contended that only a certified copy of the compromise dated 19-10-1969 had been filed before the city civil court, Bombay and merely on that ground, it could not be held that section 195 of the Code of Criminal Procedure stood in the way of the applicant from stating that the entire proceedings of the case in which the said compromise is alleged to have been arrived at were froged. 7. THE first contention urged on behalf of the applicant is wholly without substance. True it is that section 244 of the Code of Criminal Procedure, inter alia lays down that when a warrant case is instituted otherwise than on police report, the accused appears or is brought before Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. It is also true that sub-section (1) of section 245 of the said code lays down that after taking such evidence as is referred to in section 244 if the Magistrate comes to the conclusion that no prima facie case is made out against the persons accused, he may pass as order of discharge forthwith. But sub-section (2) of section 245 engrafts an exception to the general rule stated above. It lay, down that nothing contained in section 245 shall be demeed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. But sub-section (2) of section 245 engrafts an exception to the general rule stated above. It lay, down that nothing contained in section 245 shall be demeed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. In view of the express provision of law enacted in sub-section (2) of section 245 of the code, it is idle to contend that the Magistrate was not competent to pass an order of discharge once he had summoned the accused under section 202 Cr. P.C. 8. THE second contention urged on behalf of the applicant, however, requires a closer scrutiny. Section 195, in so far as it is relevant for the purpose of this case, is reproduced below :- "(1) No court shall take cognizance- (a) (i)......(ii)......(iii)......(b)......(i) (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)." The whole object and purpose of this provision has been explained in Patel Lalji Bhai Somabhai v. The State of Gujrat, AIR 1971 SC 1935 . In that case, their Lordships have stated ;- "The purpose and object of the legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in section 195 (1) (b) and (c) is both to save the accused person from vexatious or baselss prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason as suggested earlier, that the legislature- has entrusted the court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of criminal trial of the guilty party." 9. It is for this reason as suggested earlier, that the legislature- has entrusted the court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of criminal trial of the guilty party." 9. IN the aforesaid case, their Lordships were dealing with the provision of the Code of Criminal Procedure of 1898. The provisions enacted in sec. 195 of the said Code has been reproduced in the Code of Criminal Procedure 2 of 1974 with minor modifications which are not relevant for the purpose of this case. 10. ON behalf of the applicant, reliance has been placed in support of his contention on Girdhari Lal v. King Emperor, AIR 1925 Oudh 413 and Sanmukh singh v. The King, AIR 1950 PC 31. Their Lordships of the Privy Council approved the view taken by Danials C. J. in Girdhari Lal (supra). The ratio decedendi deducible from the two cases is that the court before which a copy of the document produced is not really in a position to express an opinion about the genuineness of the original when only a copy of that document is filed before it. The decision of the case turns on the interpretation of the words produced or given which also occurs in section 195 (1) (b) (ii) of the present code. The view taken in the case cited above is that when only a copy of a document is filed, the original of a document cannot be said to have been produced or given in evidence before the Court. True it is that in paragraph 13 of the complaint it is specifically stated that the certified copy filed by opposite party no. 1 before the city civil court, Bombay was forged and fabricated and had been filed by him knowing these facts, nevertheless on a reading of the entire contents of the complaint, it would appear that the complainant is aggrieved by the entire record of the criminal case in which the compromise dated 19-10-1969 is alleged to have been filed. According to him no such complainat was ever filed. No notice were issued in that case, no evidence was recorded by the Nyaya Panchayat and no compromise was arrived at before it. According to him no such complainat was ever filed. No notice were issued in that case, no evidence was recorded by the Nyaya Panchayat and no compromise was arrived at before it. In short, he claims that the entire record of the proceedings before the Nyaya Panchayat has been fabricated and forged in order to suit the convenience of and to advance the interest of Ganesh Dutt Pathak, opposite party no. 1. Paragraph 13 cannot be read in isolation with the remaining contents of the complaint. That being the position, the decision of the Privy Council and that of the Oudh Chief Court referred to above apply with full force to the facts of the case and the complaint can not be said to be barred by section 195 (1) (b) (ii) of the Code of Criminal Procedure, 1973. 11. BEFORE parting with case, I may point out that the effect of the judgment of the Chief Judicial Magistrate dated 25-4-1975 and of other courts which are on record have not been considered by the court below. It will be open to the opposite parties to canvass before the trial Magistrate that the complaint is not maintainable in view of the said judgments. I however, express no opinion as to the effect of the said judgment. 12. THE result therefore is that this revision succeeds and is hereby allowed. THE order of the Munsif Magistrate dated 31-8-1978 is hereby quashed. Revision allowed.