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1984 DIGILAW 95 (PAT)

Laxminia Devi v. Lal Bahadur Kahar

1984-03-12

K.B.SINHA

body1984
JUDGMENT : Krishna Ballabh Sinha, J. - This application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the new Code') is directed against the ORDER :of the Sessions Judge, Siwan, reversing the ORDER :of the Sub-divisional Judicial Magistrate consequent to which processes were issued against the opposite party for appearance in the court to face prosecution under various section of the Indian Penal code (hereinafter referred to as "The Penal Code") including the one described under section 463 of the Penal Code. 2. A brief narration of the facts of the prosecution case is essential to appreciate the contention raised on behalf of the parties. A complaint was filed by the petitioner, Laxminia Devi on 23.11.1979 in the court of the Chief Judicial Magistrate, Siwan, alleging therein that Lal Bahadur Kahar (opposite party no. 1) had got a sale deed executed in his favour with regard to the property of the complainant by setting up a lady to impersonate her as the vendor. It is stated in the complaint petition that the petitioner learnt from one Sheo Gopal about creation of the said false document. On further enquiry, it came to her knowledge that opposite party no. 1 had set up Phuleshari Devi (opposite party no. 4), his sister-in-law, to impersonate the petitioner for executing the sale deed. Sudama Tiwary (opposite party no. 5), the scribe of the said document, and Bodha Sah (opposite party no. 3) the identifier of the executant, were also made accused in the case. The complainant was examined on solemn affirmation on 20.12.1979 and the case was transferred to the court of the Sub-divisional Judicial Magistrate, Siwan where two witnesses were examined in course of the inquiry held under section 202 of the new Code and thereafter, an ORDER :was passed on 12.4.1980 to issue processes against the opposite party. 3. A revision petition was filed by the opposite party in the court of the Sessions Judge, Siwan, against the said ORDER :. After hearing the parties, the revision petition was allowed and the ORDER :s taking cognizance was quashed. 3. A revision petition was filed by the opposite party in the court of the Sessions Judge, Siwan, against the said ORDER :. After hearing the parties, the revision petition was allowed and the ORDER :s taking cognizance was quashed. The revisional court has held that the allegation against the members of the opposite party was for committing the offence described under sections 463 and punishable under section 471 of the Penal Code regarding a document which was the subject matter of consideration by a Civil Court in Partition Suit No. 32 of 1978 and, as such, the ORDER :taking cognizance was bad in view of the bar created by section 195 (i) (b), (ii) and (iii) of the Code of Criminal Procedure. 4. The learned counsel for the petitioner (complainant) has advanced two-folds argument. His first contention that the provision of section 195 of the Code are not attracted to the facts of this case and hence the ORDER :of the Sessions Judge cannot be maintained. In support of his argument, he has placed reliance on the case of Patel Laljibhai Somabhai v. State of Gujarat ( AIR 1971 SC 1935 ). In that case the appellant filed a suit for recovery of some money on the basis of a cheque alleged to have been issued under the signature of the complainant. The suit was dismissed on 30.1.1966. Then a complaint was filed against the appellant and having found a prima facie case that the appellant had fraudulently used the forged cheque in the Civil suit, the Magistrate took cognizance of the offences under sections 465 and 471 of the Penal Code and the case was committed to the Court of Session. In the Sessions Court, an objection was raised by the appellant that in face of prohibition created by section 195(1) (c) of the Code of Criminal Procedure, the ORDER :of cognizance on a private complaint was not legal. It was found tenable by the Sessions Judge, who referred the case to the High Court with recommendation to quash the commitment ORDER :. The High Court declined to accept the reference and then the matter went up before the Supreme Court. It was found tenable by the Sessions Judge, who referred the case to the High Court with recommendation to quash the commitment ORDER :. The High Court declined to accept the reference and then the matter went up before the Supreme Court. While discussing the scope of clause (c) of section 195(1) of the Code of Criminal procedure, their Lordships took the view that the purpose of enacting section 195 (1) (b) and (c) and section 476 was to check the temptation of the private parties to initiate criminal prosecution on frivolous, vexatious Or insufficient grounds with revengeful design. It was held that the prohibition contained in section 195(1) (c) was confined to the cases in which the offences mentioned therein were committed by a party to the proceeding in the character of such party. 5. On the basis of the principle laid down in that case, it is urged on behalf of the petitioner that the sale deed in question was executed much prior to the date when the complaint petition was filed in the court and so the provision of section 195(1) (c) of the Code was not attracted as the alleged forgery was not committed after the members of the opposite party were made accused in the complaint case. 6. Learned counsel appearing on behalf of the opposite party, on the other hand, has urged that a change has been introduced in section 195 of the new Code and in view of the alteration made in the law, the principle laid down in the Patel's case (supra) is not applicable to the facts of the instant case. 7. 6. Learned counsel appearing on behalf of the opposite party, on the other hand, has urged that a change has been introduced in section 195 of the new Code and in view of the alteration made in the law, the principle laid down in the Patel's case (supra) is not applicable to the facts of the instant case. 7. For proper consideration of the arguments put forward on behalf of the parties, it may be useful to quote section 195(1) (c) of the Code of Criminal Procedure, 1898, which is thus:- "195(1) - No Court shall take cognizance- (a) xx xx xx xx (b) xx xx xx xx (c) of any offence described in section 463 or punishable under section 471, section 475 or section 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." The corresponding provision in the new Code is to be found in section 195(1) (b) (ii), which says:- "195(1) No Court shall take cognizance- (b) (ii) of any offence described in Sec. 463, or punishable under Sec. 471, Sec. 475 or Sec. 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." It is apparent that a noticeable change has been introduced in the section in the new Code and the expression "alleged to have been committed by a party to any proceeding in any Court" has been dropped. Earlier the scope for application of the prohibition with regard to the party was very limited as the prosecution could be launched by a court only against a person who was a party to the proceeding. It was on account of this limitation that the court concerned was vested with the power to initiate prosecution for the offences enumerated in the section, when it was found to have been committed by a party to the proceeding. In the new Code the words "party to the proceeding in any Court" have been omitted and hence the scope has been enlarged considerably. In the new Code the words "party to the proceeding in any Court" have been omitted and hence the scope has been enlarged considerably. Now, in my view, even if forgery is committed before initiation of the prosecution in a court and the forged document is produced before it, the section empowers the court alone, to the exclusion of the private party, to file complaint. With removal of the aforementioned bar in the new Code, the sweep of this provision, now, touches all who are responsible for forging a document and producing the same in the court. In view of the foregoing discussions, I find that the maxim laid down in Patel's case (supra) has no application to the facts of this case, and, therefore, the first point raised on behalf of the petitioner has to be rejected. 8. Then it is urged that the ORDER :of the Sessions Judge is also vitiated as it took into consideration some extraneous materials. It is submitted that it is not mentioned in the complaint petition that partition Suit No. 32 of 1978 was pending in which opposite party no. 1 who is a defendant refuted the claim of share of the plaintiff in the property on the basis of the sale deed in question, but the Sessions Judge has based his finding on the existence of such a partition suit. The revisional court, according to the petitioner, was not entitled to consider the fact mentioned in the complaint, which was penned through before it was filed in the court. I think, it is difficult to accept the argument that the material which is so important for just decision of the case should be ignored by the court when the same was brought to its notice. It is clearly mentioned in the ORDER :of the learned Sessions Judge that the counsel, appearing on behalf of the petitioner in the court below, has argued that a partition suit was pending in which the opposite party no. 1 had already filed a written statement, basing his claim on the disputed sale deed. It appears that the partition suit was filed in the year 1978 and both the parties had entered appearance. The primary issue awaiting decision to the civil court is mainly dependent upon the finding regarding genuineness or otherwise of the sale deed in question. 1 had already filed a written statement, basing his claim on the disputed sale deed. It appears that the partition suit was filed in the year 1978 and both the parties had entered appearance. The primary issue awaiting decision to the civil court is mainly dependent upon the finding regarding genuineness or otherwise of the sale deed in question. True it is that after making statement regarding the partition suit in the complaint, it appears to have been penned through but the writing is still clearly visible. When the matter had come to the notice of the learned Sessions Judge, in the circumstances of this case, it was open to him to look the same. Therefore, it cannot be accepted that the extraneous materials were considered by him. As a matter of fact, the petitioner appears to have tried to suppress an important material and wanted to keep the court in dark about the civil court. 9. In the result, I do not find any merit in this petition and, accordingly, it is dismissed. However, it will be open to the petitioner to take steps in accordance with law after decision of the partition suit, if a definite finding is recorded by the civil court with regard to the sale deed in question holding the opposite party responsible for using and making a false document.