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1993 DIGILAW 815 (RAJ)

Usha Khurana v. State of Rajasthan

1993-12-10

M.R.CALLA, Y.R.MEENA

body1993
JUDGMENT 1. - This is a writ of habeas corpus filed by Smt. Usha Khurana wife of Shri Harbans Lal Khurana, for the release of Shri Harbans Lal Khurana, challenging the remand orders passed by the Additional Chief Judicial Magistrate No. 1, Jaipur City and seeking the declaration that the detention of Shri Harbans Lal in pursuance of the remand orders passed by the Addl. Chief Judicial Magistrate No. 1, Jaipur City, Jaipur, is unlawful. After hearing the arguments of all the sides, we had already ordered the release of Shri Harbans Lal with appropriate directions to the Addl. Munsif and Judicial Magistrate No.4, Jaipur City' Jaipur, on 15.10.1993 i.e. the last working day before the commencement of Dushera break, for reasons to he given later on. Accordingly, we hereby pronounce the judgment and order with reasons as under: 2. The facts giving rise to this writ petition are that a Civil Suit No. 106/81 i.e. Tikam Chand v. Suraj Narain was pending in the Court of Addl. Munsif and Judicial Magistrate No. 4, Jaipur City, Jaipur. It was a suit for eviction of shop, filed by the landlord Tikam Chand against the tenant Suraj Narain. At the relevant time, Shri Harbans Lal , about whose release this writ petition has been filed, was working as the Reader in the aforesaid Court of Addl. Munsif and Judicial Magistrate No. 4, Jaipur City, Jaipur. The above suit was posted before the Court on 5.1.1984. There is a dispute about the order passed on that day by the Court and the change of the contents of the order-sheet dated 5.1.1984. The copy of the First Information Report No. 97/1992 registered at Police Station Sadar, Jaipur, which has been filed with this writ petition as Annexure-1, shows that on 16th August, 1986 when the tenant in the aforesaid suit wanted to examine himself, on behalf of the landlord Tikam Chand a certified copy of the order-sheet dated 5.1.1984 was produced and he raised the grievance that the defendant's defence against eviction had been struck off and he could not be allowed to lead evidence; but the file of the Court revealed that the order-sheet dated 5.1.1984 had been changed. The landlord Tikam Chand filed a complaint and after a preliminary enquiry, a regular disciplinary enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as the 'Rules of 1958') was held against Shri Harhans Lal , by the Additional District & Sessions Judge No. 6, Jaipur City, and the Enquiry officer gave the finding that the then Reader Shri Harbans Lal Khurana in collusion with the tenant-defendant in order to cause undue benefit to him and in order to harm the plaintiff-landlord, had changed the order-sheet and it was a serious interference in the judicial process and on account of the aforesaid act of Shri Harbans Lal Khurana, delay had been caused in the proceedings and the charges levelled against Shri Flat-bans Lal Khurana were fully proved, that he had tempered the judicial record and had replaced another order-sheet in order to cause undue benefit to the defendant-tenant in collusion with him and therefore, it was not in the interest of justice and the Government to continue such a person in the service. It has been alleged in the FIR that the defendant-tenant Suraj Narain in collusion with Harbans Lal Khurana had prepared a forged document and having obtained the signatures of the Presiding officer thereon as if it was original, tempered with the record of the Court, in order to cause irreparable loss and damage to the landlord. It has further been alleged that Shri Harbans Lal had committed a serious offence by removing the original order-sheet and including the forged and tempered document therein. 3. The landlord Tikam Chand had submitted a written report before the Station House officer, Police Station Sadar, Jaipuron 22.2.1992. According to the present petitioner, the police refused to register the case on the ground that the matter related to some happening concerning the working of the Court itself and there upon, the landlord Tikam Chand submitted an application before the Superintendent of Police, Jaipur City, Jaipur, on 29.2.1992 requesting him to issue directions to the Station House officer, Police Station Sadar, Jaipur, for registering the case and thereafter, on 26.5.1992, an FIR No. 97/ 92 was registered for the offences punishable u / Section 467/120-B . The contents of this FIR are reproduced as under:xxx xxx 4. The contents of this FIR are reproduced as under:xxx xxx 4. At this stage, apprehending his arrest, Shri Harbans Lal Khurana applied for anticipatory bail before the Sessions Judge, Jaipur City, Jaipur, who vide his order dated 10th July, 1992 granted anticipatory bail to Shri Harbans Lal Khurana. The police after investigation into the aforesaid FIR No. 97/1992 filed the challan before the Court of Additional Chief Judicial Magistrate No. 1, Jaipur City, Jaipur, on 19th October, 1992 against Shri Harbans Lal Khurana (Reader of the Court) and Suraj Narain (defendant-tenant). On 9.11.92, the Additional Chief Judicial Magistrate No. 1, Jaipur City, Jaipur took cognisance of the offences u /Secs. 467, 379, 218 and 120-B IPC against Shri Habans Lal Khurana and Suraj Narain, on the basis of the challan filed by the police in relation to FIR No. 97/1992 which had been lodged by Tikam Chand-the landlord. While the matter was pending before the Additional Chief Judicial Magistrate No. 1, Jaipur City, for hearing arguments on charge, on an application filed by the landlord Tikam Chand against Shri Harbans Lal Khurana for cancellation of the anticipatory bail order d t. 10.7.1992, which had been passed by the Sessions Judge, Jaipur City, Jaipur, this Court by its order dated 12.5.1993 cancelled the order of anticipatory bail granted in favour of Shri Harhans Lal Khurana on 10.7.1992. It was given out by the Counsel for the petitioner that on 19.5.1993, the Public Prosecutor, supporting Tikam Chand, the landlord, requested the Court for issue of the non-bailable warrants for Shri Harhans Lal Khurana and the non-bailable warrants were issued on 3.6.1993 and although such warrants had been received hack as unnerved, on 19.6.1993 which was the next date fixed in the Court of Additional Chief Judicial Magistrate No. 1, Jaipur City, Jaipur; Shri Harhans Lal Khurana surrendered before the Court on 25.6.1993 and he was sent to Central Jail, Jaipur, in judicial custody of the Court and since then, the time of judicial custody is being extended. 5. While Shri Harhans Lal Khurana was in the judicial custody lodged at Central Jail, Jaipur, as above, on 2.7.1993, an applicationunder section 439 Cr. P.C. for regular hail was filed by Shri Harbans Lal Khurana and this bail application u/ Section 439 Cr. 5. While Shri Harhans Lal Khurana was in the judicial custody lodged at Central Jail, Jaipur, as above, on 2.7.1993, an applicationunder section 439 Cr. P.C. for regular hail was filed by Shri Harbans Lal Khurana and this bail application u/ Section 439 Cr. P.C. was got dismissed as not pressed by saying that writ of habeas corpus had been filed and therefore, he wanted to withdraw the said bail applicationunder section 439 Cr. P.C. During the pendency of this S.B. Criminal Misc. Bail Application No. 2862/1993, u /Sec. 439 Cr.P.C. before this Court, Shri Harhans Lal Khurana had also filed a petition u /Sec. 462 Cr.P.C. being S.B. Criminal Miscellaneous Petition No. 936/1993 on 10.8.1993 for quashing criminal proceedings pending against him in the form of Regular Criminal Case No. 624/1992 pending trial in the Court of Addl. Chief Judicial Magistrate No. 1, Jaipur City, Jaipur. Along with this applicationunder section 482 Cr. P.C. for quashing the criminal proceedings, Shri Harbans Lal Khurana also filed S.B. Criminal Misc. Bail Application No. 937/1993under section 482 read with Section 439 Cr. P.C. Since reference had been frequently made to the orders passed in S.B. Criminal Misc. Bail Application No. 2862/1993, S.B. Criminal Misc. Petition No. 936/ 1993 and S.B. Criminal Misc. Bail Application No. 937/ 1993 filed therein, we also called for the aforesaid files from the Registry, during the cause of hearing of this habeas corpus petition. We find from the proceedings recorded in S.B. Criminal Misc. Bail Application No. 2862/ 1993, on 3.8.1993 that for deciding this hail application the Court i.e. the single bench needed the assistance of the learned Advocate General and he was called upon to assist the Court in respect of the following points: (i) Whether the provisions of Section 467 of IPC are applicable to the facts of the present case and the offence alleged to have been committed falls within the various items mentioned in the said Section ? (ii) Whether a complaint by the Presiding officer in accordance with the provisions of Section 195(1)(h) was necessary and whether the inherent power of the Court could be exercised in issuing any direction in this regard?" 6. It further appears from the proceedings dated 7.9.1993 recorded in S.B. Criminal Misc. Bail Application No. 937/1993 in S.B. Criminal Misc. Petition No.936/93under section 482 Cr. It further appears from the proceedings dated 7.9.1993 recorded in S.B. Criminal Misc. Bail Application No. 937/1993 in S.B. Criminal Misc. Petition No.936/93under section 482 Cr. P.C that the learned Advocate General brought to the notice of the Court on this date i.e. 7.9.1993 that in this matter, a habeas corpus petition has been filed before the Division Bench taking these very grounds and therefore, the matter may be taken up after the decision by the Division Bench and accordingly, the same was posted after the decision of the division bench. This is the whole prelude in which the present habeas corpus petition was filed on 13.8.1993 and as to how this writ petition came up before us. 7. On 4.10.1993, on behalf of the complainant Tikam Chand, an application had been filed for being impleaded as a party in this writ petition because he was the land lord in this case and he was the author of the FiR on the basis of which the investigation was held by the police and the challan had been filed therein against Shri Harbans Lal Khurana and Suraj Narain, defendant-tenant. During the course of arguments, we were told that the defendant-tanant Suraj Narain has already been granted bailunder section 439 Cr.P.C. while Shri Harbans Lal Khurana is in Central Jail, Jaipur, under the orders by which he had been sent to judicial custody by the Additional Chief Judicial Magistrate No. 1, Jaipur City, Jaripur, since 24.6.1993. 8. This writ petition is founded on the following grounds: (i) Thatunder section 309 Cr. P.C. an accused can be remanded to the judicial custody after taking cognisance of an offence against him and therefore valid and lawful cognisance of an offence is a condition precedent and prerequisite for an order of remand to the judicial custody; (ii) That when the offences punishable under Sections 193 to 196, 199, 200, 205 to 21 1 and 228 IPC are alleged to have been committed in or in relation to any proceeding in any Court, or any offence described in Section 463 or punishableunder section 471, 475 or 476 IPC is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; in accordance with the requirements of Section 195 Cr. P.C. no Court shall take cognisance of such an offence, except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. In the instant case, the offence which is said to have been committed is covered under the offences mentioned in Section 195(1)(b)(i) and (ii) IPC and yet, the cognisance has been taken without there being any complaint in writing by the concerned Court and as such, there is no valid and lawful cognisance and consequently, the orders by which Shri Harbans Lal Khurana is being remanded to the judicial custody since 24.6.1993, are unlawful and therefore the custody of Shri Harbans Lal Khurana and his detention in the Jail since 24.6.1993 is unlawful. 9. A preliminary objection was raised by Shri S.M. Mehta, learned Advocate General, supported by Shri R.S. Rathore, learned Counsel for the complainant , that in the case at hand, a petitionunder section 482 Cr. P.C. filed by Shri Harbans Lal Khurana was pending and thus, he has already availed the alternative remedyunder section 482 Cr. P.C. and therefore, this writ of habeas corpus filed by his wife Smt. Usha Khurana, for the release of Shri Harbans Lal Khurana is not maintainable. It was pointed out that amongst other grounds, the grounds on which the present writ petition of habeas corpus is founded, are also there in the petition u /Sec. 482 Cr. P.C. and in view of the fact that the remedyunder section 482 Cr. P.C. has already been availed, which is a statutory remedy, this writ petition deserves to be dismissed on the ground of alternative remedy alone. On this point, learned Advocate General has placed reliance on D. Vaidyalingam v. Kuppuswamy Reddy and Others, (AIR 1993 Madras 105) , Election Commission of India v. Saka Venkata Rao ( AIR 1953 SC 210 ) , K.S. Rashid and Son v. Income Tax Investigation Commission and Others ( AIR 1954 SC 207 ) and Thansingh v. Supdt. of Taxes ( AIR 1964 SC 1419 .) . 10. Shri S.R. Bajwa, learned Counsel for the petitioner, on the other hand, has submitted that the learned Advocate General himself had objected to the hearing of the petitionunder section 482 Cr. P.C. on 7.9.1993 and it was at his instance that the Court had ordered that the petitionunder section 482 Cr. 10. Shri S.R. Bajwa, learned Counsel for the petitioner, on the other hand, has submitted that the learned Advocate General himself had objected to the hearing of the petitionunder section 482 Cr. P.C. on 7.9.1993 and it was at his instance that the Court had ordered that the petitionunder section 482 Cr. P.C. may be put off till the decision of the habeas corpus petition by the Division Bench and therefore, he was now estopped from raising an objection about the pendency of the petition u /Sec. 482 Cr. P.C. and to say that this writ petition of habeas corpus should be dismissed because Shri Harbans Lal Khurana had filed a petition u /Sec. 482 Cr. P.C. 11. Incidentally, it may be observed that the petition u /Sec. 482 Cr. P.C. filed by Shri Harhans Lal Khurana was laid before one of us (justice Y.R. Meena) and he had passed an order on 7.9.93 to the following effect: "It is brought to my notice by the Advocate General that in this matter the petitioner also filed a Habeas Corpus before the Division Bench taking these very grounds, therefore, this case can he taken up after the decision of the Division Bench. Put up after the D.B. decision in the petition filed by the petitioner. Record of the Civil Court he sent back immediately." Sd /- Y.R. Meena J." 12. We have considered the aforesaid submissions of Shri S.R. Bajwa, learned Counsel for the petitioner and we are of the opinion that merely because an order was passed on 7.9.1993, may be at the instance of the learned Advocate General, that the petitionunder section 482 Cr. P.C. may be taken up after the decision in the present habeas corpus petition by the Division Bench, it does not preclude the learned Advocate General from objecting to the maintainability of the writ petition of habeas corpus on the ground of pendency of the petition u /Sec. 482 Cr. P.C. and therefore, this argument of Shri Bajwa cannot be accepted and it is open to the learned Advocate General to raise the preliminary objection against the maintainability of this writ petition on the ground of alternative remedy. 13. P.C. and therefore, this argument of Shri Bajwa cannot be accepted and it is open to the learned Advocate General to raise the preliminary objection against the maintainability of this writ petition on the ground of alternative remedy. 13. Shri S.R. Bajwa, learned Counsel for the petitioner then contended that so far as the provisions of Section 482 Cr.P.C. are concerned, it is a provision containing inherent powers of the High Court under the Cr.P.C. and it only provides that nothing in the Cr. P.C. shall he deemed to limit or affect the inherent powers of the High Court to make such orders may be necessary to give effect to any order under this Code, or to prevent abuse of the process of an Court or otherwise to secure the ends of justice. His contention is that invoking such inherent powersunder section 482 Cr.P.C. cannot be termed as adequate and an equally efficacious alternative remedy, may be that a petition u ,Sec. 482 Cr.P.C. filed by Shri Harhans Lal Khurana is pending, he is still within his rights to move this Court to avail the remedy of habeas corpus provided in the Constitution of India and in no case, this habeas corpus petition can he thrown out on the ground of alternative remedy u /Sec. 482 Cr.P.C. more particularly when he is agitating for his fundamental rights under Article 21 of the Constitution of India, through this writ petition. Merely because one of the grounds with reference to Section 195 Cr.P.C. is common in the petitionunder section 482 Cr.P.C. and in this habeas corpus petition, it cannot be said that this habeas corpus petition is not maintainable on account of pendency of the petitionunder section 482 Cr.P.C. Shri Bajwa, learned Counsel for the petitioner has also submitted that the scope of the petition and powersunder section 482 Cr.P.C. are entirely different than the scope of a habeas corpus petition and once the question of personal liberty is involved, the writ petition of habeas corpus cannot be thrown on account of the pendency of the petitionunder section 482 Cr.P.C. He has also submitted that the availability and even availing of an alternative remedy is no bar to the maintainability of the petition under Article 226 of the Constitution of India and it is only a self-imposed discipline by the High Court that in appropriate cases it may refuse to entertain the writ petition when alternative remedy is avail- able or it has been availed and otherwise, it is only the rule of convenience and not a rule of law and such a valuable constitutional remedy can- not be denied at the after of technical and jejune objections. In support of his various submission, as aforesaid, Shri Bajwa has placed reliance on Ram: and Shyam Company v. State of Haryana and Others ( AIR 1985 SC 1147 ) . 14. We have considered the submissions of both the sides on the preliminary objection raised by the learned Advocate General. The decision of the Madras High Court in D. Vaidyalinganr's case (supra) deals with the case of a writ of habeas corpus for the recovery of the custody of the minors in which the District Court had appointed the paternal grand-father as the guardian of minors. A petition of habeas corpus had been filed by the paternal grand father for setting aside the ex-parte order claiming relief to restore the status quo ante as it was obtaining prior to the order of the District Court. A petition of habeas corpus had been filed by the paternal grand father for setting aside the ex-parte order claiming relief to restore the status quo ante as it was obtaining prior to the order of the District Court. The Court held that the question with regard to the custody of a minor is to be decided by the concerned Court under the relevant law and further that the order had been passed by the District Court with regard to the appointment of the guardian of the minor and therefore, such custody was lawful and it was held that no case for issuance of writ of habeas corpus had been made out and in such case, habeas corpus is no remedy, the petitioner has to work out his remedy only in the said Court and that the petitioner had misconceived his remedy in filing the writ petition. This case is therefore, entirely distinguishable as it does not deal with the question of alternative remedy so as to deny the writ of habeas corpus, rather the judgment proceeds on the basis that the question of custody of a minor child is to be decided by the competent Court and since the order had already been passed with regard to the appointment of guardian by the District Court, it was not at all a case for issue of a writ of habeas corpus. If the petitioner was aggrieved of any order passed by the District Court, he had to work out his remedy only before that Court and that he had already filed the petition to set aside the ex-parte order passed by the District Judge with regard to the appointment of the guardian of minors. This decision, in our view, is not to the point for which it has been cited. 15. The case reported in AIR 1953 SC 210 Election Commission, India v. Saka Venkata Rao also finds place in K.S. Rashid and Son's case (supra). In this case of KS. Rashid and Sons (supra) in Para 3 it has been observed that the whole law on this subject has been discussed and elucidated by that Court in its recent pronouncement in the case of Sakti Venkata Rao (supra). In this case of KS. Rashid and Sons (supra) in Para 3 it has been observed that the whole law on this subject has been discussed and elucidated by that Court in its recent pronouncement in the case of Sakti Venkata Rao (supra). In Para 4 it has been observed that the remedy provided for in Article 226 of the Constitution of India is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Nevertheless, the exclusion of the remedy under Article 226 of the Constitution of India on account of the availability of the statutory alternative remedy was still left open by the Supreme Court even in this case when it observed in the second paragraph of para 4 of the said judgment, as under: "We think that it is not necessary for us to express any final opinion in this case as to whether Section 8(5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution of India." 16. In Than Singh's case (supra)while it has been observed in the end of Para 7 that "where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court will not permit entertaining a petition under Article 226 of the Constitution of India, it has been observed in the earlier part of this very para that the jurisdiction of the High Court under Article 220 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. 17. Thus, it is established that the alternative remedy, available or availed, is no bar to the exercise of the powers under Article 226 of the Constitution of India and it has to be decided by the Court in the facts and circumstances available and obtaining in each case. 17. Thus, it is established that the alternative remedy, available or availed, is no bar to the exercise of the powers under Article 226 of the Constitution of India and it has to be decided by the Court in the facts and circumstances available and obtaining in each case. Moreover, reference may be made to Himmat Lal Mehta v. State of Madhya Pradesh ( AIR 1954 SC 403 ) in which reliance has also been placed on the State of Bombay and Another v. The United Motors (India) Ltd. and Others ( AIR 1953 SC 252 ) and it has been observed in Para 9 and held as under: "There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the Court with an allegation that his fundamental right, had been infringed and sought relief under Article 226." While the principle is clearly discernible from the aforesaid judgments in United Motors (India) Ltd. and Himmmal Hari Lal Mehta's cases, that the Court will not issue a prerogative writ when an adequate alternative remedy was avail- able, it does not apply where a party has come to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226 of the Constitution; it has been clearly held in the case of Ram and Shyam Company (supra) that the rule which requires exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law. 18. Be that as it may, the objection that the remedy of filing a petition u /Sec. 482 Cr. P.C. for quashing the proceedings in the main case, had already been availed of and therefore, this writ petition should not be entertained, does not detain us from proceeding further with the hearing of this petition of habeas corpus on merits, for two reasons;- (i) Section 482 Cr. P.C. for quashing the proceedings in the main case, had already been availed of and therefore, this writ petition should not be entertained, does not detain us from proceeding further with the hearing of this petition of habeas corpus on merits, for two reasons;- (i) Section 482 Cr. P.C. is a provision contained in the Code of Criminal Procedure saving inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of the Court or otherwise to secure the ends of justice and filing of a petition to invoke the inherent powers of the High Court under this Section cannot be a substitute of the Constitutional remedy of filing a writ of habeas corpus as the case for quashing proceedings in a pending criminal case is not comparable with the case of seeking directions for restoration of liberty under Article 226 of the Constitution of India, by way of writ of habeas corpus; and (ii) whenever the complaint is about the breach of the fundamental rights with regard to the right of life and liberty, the bar of alternative remedy, whether available or valid, under the Statute, cannot be allowed to frustrate and defeat the Constitutional remedy under Article 226 of the Constitution of India. We therefore, reject the preliminary objection raised by the learned Advocate General and hold that this writ petition of habeas corpus filed for the release of Shri Harbans Lal Khurana cannot be thrown because a petition u Section 482 Cr.P.C. is pending in the High Court, for the quashing of the criminal proceedings along with an application for bail- S.B. Cr. Misc. Bail Application No. 937/1993, under Section 439 Cr.P.C. 19. It is not in dispute that on 9.11.1992 the learned Magistrate took cognizance against the accused persons including Shri Harbans Lal Khurana for the offences punishable under Sections 467,379,218and 120-B IPC.Sec. 195Cr.P.C. is reproduced as under: "195. Misc. Bail Application No. 937/1993, under Section 439 Cr.P.C. 19. It is not in dispute that on 9.11.1992 the learned Magistrate took cognizance against the accused persons including Shri Harbans Lal Khurana for the offences punishable under Sections 467,379,218and 120-B IPC.Sec. 195Cr.P.C. is reproduced as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence:- (1) No Court shall take cognisance; (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i)of any offence punishable under any of the following Sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (b)the inclusive) and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (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), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under Clause (a) of Sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the compliant: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In Clause (h) of Sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this Section. (4) For the purposes of Clause (h) of Subsection (1), a Court shall he deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that:- (a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to he subordinate; (h) Where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." 20. It was submitted by Shri Bajwa, learned Counsel for the petitioner that as per the allegations, it is a case in which the offence has been committed in or in relation to proceedings in the Court and the offence of fabricating false evidenceunder section 192 IPC is punishable under Sections 193 to 196 IPC and therefore, the offence in question is covered by Section 195(b)(i) Cr.P.C. It was also submitted that according to the allegations, the offence in this case is forgery which is an offence described in Section 463 IPC and it is punishable u /Secs. 471,475 and 476 IPC and the offence has been committed in respect of a document produced in a proceeding in the Court and as such, the cognisance, could not be taken unless and until there is a complaint in writing by the Court concerned. Shri Bajwa, learned Counsel for the petitioner further submitted that in this case, there is no complaint by the Court concerned and therefore, according to the provisions of Section 195 Cr. Shri Bajwa, learned Counsel for the petitioner further submitted that in this case, there is no complaint by the Court concerned and therefore, according to the provisions of Section 195 Cr. P.C. there is no question of taking cognisance of the offence against Shri Harbans Lal Khurana and consequently, in absence of a valid cognisance, Shri Harbans Lal Khurana could not be remanded to the judicial custody. There is no denial of the fact that since 24th June, 1993, Shri Harbans Lal Khurana is being remanded to the judicial custody under the various orders and therefore, we have to examine the validity and the correctness of the cognisance taken by the Court on the challan papers and in case it is found that there was no valid cognisance, what effect will it have with regard to the judicial custody of Shri Harbans Lal Khurana i.e. whether the custody is unlawful or otherwise. The record of S.B. Cr. Misc. Bail Application No. 937/1993 in S.B. Criminal MI .,c. Petition No.936/1993 i.e. the record relating to the petitionunder section 482 Cr. P.C. shows that Tikam Chand complainant had filed an affidavit dated 21.5.93 and with this affidavit, copies of the order-sheet had been filed. As per these copies filed along with the affidavit of Tikam Chand, the contents of the two order-sheets dated 5.1.1994 are reproduced as under:xxx xxx xxx 21. Thus, it cannot be disputed that the alleged offence in question has been committed in or in relation to a proceeding in the Court. Stress was also laid by the learned Counsel for the petitioner that as per the allegations, it is a case in which the offence has been committed in respect of a document produced 'or given in evidence in a proceeding in any Court. Shri Bajwa, learned Counsel for the petitioner, referred to the Webster's Third New International Dictionary, Vol. II, page 1810 and submitted that the word 'produce' means something that is brought forth naturally or with effort and work, and in the instant case, the order-sheet dated 5.1.1984 has been brought forth with an effort and therefore, it is a case of production of the document in a proceeding in the Court. Shri Bajwa, learned Counsel for the petitioner, has cited the following cases in support of his submission: i) Chandra Kishore Jha etc. Shri Bajwa, learned Counsel for the petitioner, has cited the following cases in support of his submission: i) Chandra Kishore Jha etc. v. The State of Bihar (1975 Criminal Law Journal 1939) , (ii) Premjit Kaur v. Harsinder Singh (1982)2 SCC 167 ) (iii) Gopalkrishna Menon and Another v. D. Raja Reddy and Another ( AIR 1983 SC 1053 ) , (iv) Govind Mehta v.The State of Bihar ( AIR 1971 SC 1708 ) , (v) Remdeo Mahto v. State of Bihar (1978 Cr. L) 1074) , (vi) Dalam Chand Baid v. Union of India & Others (1982 Cr. L) 747) , (vii) Babu Jha and Another v. Emperor (1929 Cr. L.J. 236) . Thus, the principle submission made by Shri Bajwa on behalf of the petitioner is that it was a case in which there was no valid cognisance, once the challan is filed the order of remand to judicial custody is passedunder section 309 and in the instant case, when there was no complaint by the concerned Magistrate, the Trial Court could not have taken cognisance of the offence in view of the bar contained in Section 195 Cr. P.C. The cognisance being invalid, the order of judicial remand by the Magistrate was without jurisdiction rendering his custody to be unlawful and hence, Shri Harbans Lal Khurana was entitled to be released. He also invited our attention to the provisions contained in Section 340 Cr. P.C. relating to the procedure mentioned in Section 195 Cr.P.C. Section 340 Cr. P.C. is reproduced as under: "Sec. 340. He also invited our attention to the provisions contained in Section 340 Cr. P.C. relating to the procedure mentioned in Section 195 Cr.P.C. Section 340 Cr. P.C. is reproduced as under: "Sec. 340. Procedure in cases mentioned in Section 195.-(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate." 22. Learned Advocate General submitted that in the instant case, Section 195 Cr. P.C. has no application because it is not an offence committed in or in relation to a proceeding in the Court. It is a case of the replacement of an order-sheet and it cannot be said in the facts of this case that any document has been produced or given in evidence in a proceeding in any Court. He submitted that the order-sheet in question has not been given in evidence in a proceeding in any Court and therefore, there is no question of invoking Section 195 Cr. P.C. in this case. He has also argued with reference to the definition of the word 'evidence' as given in Section 3 of the Indian Evidence Act, 1992, which reads as under: "Evidence".- "Evidence" means and includes:- (1) all statements which the Court permits or requires to he made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) All documents produced for the inspection of the Court, such documents are called documentary evidence." 23. The argument of the learned Advocate General is that it is a case of an offenceunder section 466 IPC which is not covered by any of the provisions u /Sec. 195 Cr. P.C. and hence, it was not at all necessary that there should have been any complaint in writing by the concerned Court in accordance with Section 195 Cr. P.C. before the cognisance of the offence could he taken. It was submitted by the learned Advocate General that the document produced or given in evidence means a document which must have been tendered in evidence before the Court so as to be include as a part and parcel of the documentary evidence. According to him, these ingredients are wanting in the facts of this case and as such, Section 195 Cr. P.C. was not applicable and thus no exception could be taken to the cognisance of the offence, taken against Shri Harbans Lal Khurana and consequently, it has no impact on the legality of his judicial custody and it cannot he said that the order to remand Shri Harban Lal Khurana to judicial custody was without jurisdiction. He has placed reliance on a full bench decision of the Punjab and Haryana high Court, reported in AIR 1987 P & H 19, Haibans Singh and Others v. State of Punjab .Shri R.S Rathore, learned Counsel for the complainant Tikam Chand has adopted the arguments raised by the learned Advocate General and has submitted that the order-sheet cannot he said to be a document, more particularly when only one page has been changed and the document has not been produced or given in evidence. He has referred to Mitra's Legal Dictionary, page 575, in which the term 'production of document 'has been illustrated as under: "It shall he lawful for the Court at any time during the pendency of any suit to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such a manner as shall appear just. Code of Civil Procedure, 1908, Order 2, Rule 14." 24. Code of Civil Procedure, 1908, Order 2, Rule 14." 24. Shri Rathore has also referred to Sarkar on Evidence Act, page 520, in order to show the meaning of the words 'production of documents' and has placed reliance on AIR 1929 Patna 60 and Govind Mehta v. The State of Bihar (AIR 1971 SC 17021) and has submitted that it is a case of an offence u /Sec. 466 IPC. 25. Shri O.P. Sharma, Government Advocate submitted in the end that the challan had been filed in October, 1992 and the cognisance was taken on 9.11.1992 and no revision petition was filed against the order taking cognisance passed by the Trial Court on 9.11.1992 and therefore, this writ petition of habeas corpus was not maintainable. This objection raised by Shri O.P. Sharma deserves to be straightway rejected for the simple reason that merely because no revision petition was preferred against the order taking cognisance the right of audience cannot be denied, in a writ of habeas corpus and whether a party prefers any revision against the order taking cognisance or not, it cannot he precluded from invoking the constitutional remedy under Articles 226 of the Constitution of India merely on the ground that such a party d id not choose to prefer the revision petition against the order taking cognizance. 26. We have heard learned Counsel for both the sides. Section 195 Cr.P.C. makes it imperative that if any of the offences referred or punishable as mentioned in Section 195(b)(i) and (ii) is committed, in or in relation to any proceedings, in any Court or in respect of a document produced or given in evidence in a proceeding in any Court, no Court can take cognizance of such an offence, except on the complaint in writing of the Court concerned or of some other Court to which that Court is subordinate without intending or meaning to say anything about the actual commission of any offence or otherwise. In the instant case, we find that the allegations on the face of it show that an offence has been committed in and in relation to a proceeding in a Court and the offence committed, in the instant case, is also punishableunder section 471 IPC. We have also gone through the meaning of the word 'produce' as given in the Webster's Third New International Dictionary, Vol. II at page 1810. We have also gone through the meaning of the word 'produce' as given in the Webster's Third New International Dictionary, Vol. II at page 1810. In Black's Law Dictionary, Fifth Edition, at page 1088, the meaning of the word 'produce' has been given as under: "Produce.- To bring forward, to show or exhibit; to bring into view or notice; as, to present a play, including its presentation in motion pictures. To produce witnesses or documents at trial in obedience to a subpoena (Fed. R. Civil P. 45; Fed. R. Crim. p.17); or to be compelled to produce materials subject to discovery, rules (Fed. R. Civil p. 37; Fed. R. Crim. p.16). To make originate, or yield, as gasoline. To yield, as revenue. Thus, sums are "produced" by taxation, not when the tax is levied, but when the sums are collected." In Venkataramaiya's Law Lexicon, Vol. III, 1991 (reprint) page 1917, the following meaning has been given to the word 'produce': "Produce. - In words and phrases (Permanent Ed.), Vol. 34, the word "produce" has been defined as "means the production, or that which is produced, brought forth or yielded". According to the Webster's International English Dictionary the word "produce" means "to bring forward, to get together". It would be seen that the word "production" meant amongst other thing that which was produced, a thing that results from any action, process or effort. It is however, to be noted that as stated in the Law Lexicon by P. Ram Natham, the word "produce" is not necessarily con- fined to what is grown from the ground. It refers also to finished articles or semi finished articles made from the raw material. Thus molasses scan fairly be called the produce of the sugar mills. Farrukhabad Cold Storage (P) Ltd. v. commissioner of Income Tax, 1979 Tax. L.R. 162 at P. 164 (All.) "Produce" means" to bring forth, bring into being or existence- to bring (a thing) into existence from its raw materials or elements". Deputy Commissioner of Agricultural Income Tax and Sales Tax v. Messrs. Palampadam Plantations, AIR 1969 SC 930 at P. 931. " 27. L.R. 162 at P. 164 (All.) "Produce" means" to bring forth, bring into being or existence- to bring (a thing) into existence from its raw materials or elements". Deputy Commissioner of Agricultural Income Tax and Sales Tax v. Messrs. Palampadam Plantations, AIR 1969 SC 930 at P. 931. " 27. Although Dictionaries are not the dictators of the statute, in this case, the allegations and the manner in which the disputed order-sheet has been replaced, clearly shows that the order-sheet in question is a document and the same has been produced before the Court so as to be used against the landlord and in favour of the tenant as if the defence had not been struck off and the same has been done in and in relation to proceedings in the Court. Having gong through the contents of the FIR and tho copies of the order -sheets, etc. we are satisfied that it is a case of allegations of the offence of fabrication of false evidence within the meaning of Section 192 IPC and the false evidence has been fabricated for the purpose of being used at any stage of a judicial proceeding and the same is an offence punishableunder section 193 IPC and hence, it is covered by Section 195(b)(i) Cr.P.C. So far as the question of the document produced or given in evidence in a proceeding as mentioned in Section 195 (b)(ii) Cr. P.C. is concerned, we may observe that the production of such a document in a proceeding in the Court is enough and it is not necessary that such document must be given in evidence in a proceeding before the Court. The words 'document produced or given in evidence' do not imply that a document should be given in evidence. The word 'or' occurring between the words 'document produced' and 'given in evidence' is in our opinion, not conjunctive but it is disjunctive. Learned Counsel for the complainant himself while referring to the Commentaries from Sarkaron Evidence Act, page 520, referred to AIR 1929 Patna 60 the equivalent of which is 1929 (30) Cr. L.J. 236. This authority has been relied upon by the Counsel for the petitioner as well as Counsel for the complainant , Shri R.S. Rathore. In this decision of the Patna High Court, Babu Jha and Another v. Emperor (supra) a similar argument was raised. L.J. 236. This authority has been relied upon by the Counsel for the petitioner as well as Counsel for the complainant , Shri R.S. Rathore. In this decision of the Patna High Court, Babu Jha and Another v. Emperor (supra) a similar argument was raised. While considering the words' produced or given in evidence', it was observed as under: "It was, however, argued that user in a Court of Law must mean production of the document and the giving of it in evidence and reliance is placed upon Section 195(c) of the Code of Criminal Procedure which has the effect of rendering the procedure under that Section inapplicable unless the forged document has been "produced or given in evidence". It is said that this limits the procedure under Section 195 (c) to a limited class of user within the wider class contemplated by Section 471 of the Indian Penal Code. This view, however, is, in my opinion, unsound. The word "or" which intervenes' between the work "produce" and the words "given in evidence" shows that it is disjunctive and that the procedure is applicable not only in cases where the document has been given in evidence but also in cases,where it has been produced and the ambit of the word "produced" is very wide as was shown in the cause of Gulabchand Rapuji v. Emperor (1) where it was held that a document presented to the Court as a compromise but rejected on the ground that it was time-barred was never - the less "produced" within the meaning of this Clause of Section 195. It was also held in Emperor v. Bansi Sheikh (2) that a document is to be considered as produced if filed in support of a pleading even though not taken into account by the Court." 28. We accordingly hold that the true and correct import of the words 'document produced or given in evidence' would mean either a document produced on the one hand or any document given in evidence and whether any document is given in evidence or not, even if it is simply produced without being actually tendered in evidence, it will be fully covered under Section 195(1)(b)(ii) and the word 'or' occurring in between the words 'document produced' and 'given in evidence' in disjunctive and not conjunctive. Once we hold that the order-sheet which has replaced in this case is covered by the term 'document produced', the argument of the learned Advocate General and Shri R.S. Rathore, learned Counsel for the complainant Tikam Chand with reference to Section 3 of the Evidence Act looses importance, although the document in question has been certainly produced for the inspection of the Court within the meaning of "Evidence" (2) under Section 3 of the Evidence Act. 29. 1n Chandra Kishore Jha's case (supra) during the pendency of the proceedings for assessment of compensation, the clerk of the office of DCLR submitted false and collusive reports and made interpolations in collectible demands and altered Touzi number for facilitating false payment to land owner and it was taken to be fabricated false evidence within the meaning of Section 192 IPC punishableunder section 193, IPC and it was held that Section 195(1)(h) Cr.P.C. is attracted for the prosecution of the accused and accordingly, the prosecution in absence of a complaint in writing by the Compensation officer was in contravention of Section 195 Cr. P.C. and the same was illegal and without jurisdiction. Relevant observations from Para 21 of this decision (Division Bench), are reproduced as under: "In my view, on the aforesaid finding that the proceeding before the Compensation officer under Chapters V and VI of the Land Reforms Act was a judicial proceeding before a Court, and that in relation to the said proceeding offences under Sections 193 and 209 of the Indian Penal Code are alleged to have been committed, as a necessary corollary it has to be held that no Court could have taken cognisance of the offences alleged to have been committed by the accused persons, in absence of a complaint in writing filed by that Court or by some other Court to which the said Court is subordinate, as required by Section 195(1)(b) of the Code. Further proceedings taken in pursuance of the order taking cognisance in contravention of Section 195 of the Code, are illegal and without jurisdiction." 30. Further proceedings taken in pursuance of the order taking cognisance in contravention of Section 195 of the Code, are illegal and without jurisdiction." 30. In Premjit Kaur's case (supra), their lordships of the Supreme Court have categorically held that Section 195(1)(b)(i) Cr.P.C. applies in case of offencesunder sections 191 and 192 IPC which are punishableunder section 193 IPC, on the reasoning that the non-mentioning of Section 192 IPC in Section 195(1)(b)(i) Cr.P.C. is of no consequence because the offenceunder section 192 IPC is punishableunder section 193 IPC and Section 193 IPC has been duly mentioned in Section 195(1)(b)(i) Cr.P.C. and on this reasoning the view taken by the High Court was found to be erroneous and the same was quashed. 31. In Gopalakrishna Menon's case (supra) it has been held that in a case of prosecution for offences u /Sees. 467 and 471 IPC read with Section 34 IPC when there was no complaint by the Court in which the fraudulent money receipt was produced, the prosecution was not maintainable. The relevant observations from Para 5 of the judgment are reproduced as under : "If Sections 195 (1) (b) (ii) is attracted to the facts of the present case, in the absence of a complaint in writing of the Civil Court where the alleged forged receipt has been produced, taking of cognisance of the offence would be had in law and the prosecution being not maintainable, there would he absolutely no justification to harass the appellants by allowing prosecution to have a full dressed trial. Section 195(1)(b)(ii) uses two different expressions: in regard to Section 463 of the Indian Penal Code it says, " offence described" while in regard to Sections 471 and 475 or 476 of the IPC it says "punishable". The High Court has not made any reference to Section 471 of the IPC while rejecting the submissions of the appellants apparently because Section 471 in terms has been mentioned in the provision. So far as Section 463 is concerned, the High Court has taken the view as we have already indicated that "Sec. 463 cannot be construed to include Section 467". Section 463 of the IPC provides:...... "The purpose of our extraction the two Sections of the Penal Code is to show that the offence which is made punishable under Section 467 of the Penal Code is in respect of an offence described in Section 463. Section 463 of the IPC provides:...... "The purpose of our extraction the two Sections of the Penal Code is to show that the offence which is made punishable under Section 467 of the Penal Code is in respect of an offence described in Section 463. Once it is accepted that Section 463 defines forgery and Section 467 punishes forgery of a particular category, the provisions in Section 195(1)(b)(ii) of the Code would immediately be attracted and on the basis that the offence punishable under Section 467 of the Penal Code is an offence described in Section 463, in the absence of a complaint by the Court the prosecution would not be maintainable. We have no doubt in our mind that the High Court took a wrong view of the matter." 32. In the case of Govind Mehta (supra), the Magistrate with special powers to try had livelihood cases, noticed some defects in the bail bonds which had been furnished by the accused persons who had been enlarged on bail and on their failure to rectify such defects, when they were called upon to do so, the Magistrate cancelled the bail bonds and remanded them to judicial custody. The parties against whom had livelihood cases had been started, filed two applications before the District Magistrate, Patna for transferring their cases from the file of the Court of the First Class Magistrate to the file of another Magistrate on the ground that they would not get justice at the hands of the Magistrate who had detected the defects and had cancelled their bail bonds and remanded them to judicial custody. After coming to know of the filing of the transfer application, the Magistrate recorded two orders on the order-sheets making serious allegations against the Distt. Magistrate before whom the transfer applications were pending, to the effect that the latter was attempting to interfere with the course of justice in the proceedings connected with the case and it is alleged that two orders in the order-sheets of the two cases were inserted long after the last orders were passed in those cases, to make it appear that the remarks against the Distt. Magistrate had been made much earlier. Magistrate had been made much earlier. Considering the aforesaid fact situation, the Supreme Court observed and held as under, in Para 12 of the judgment: "The Magistrate has normally got jurisdiction took cognisance under Section 190 of the Code in the circumstances enumerated therein. Section 195 is in fact a limitation on the unfettered powers of a Magistrate to take cognisance under Section 190 of the Code. Therefore, at the stage when the Magistrate is taking cognisance under Section 190, he must examine the facts of the complaint before him and determine whether his power of taking cognisance under Section 190 has or has not been taken away by any of the Clauses (a) to (c) of Section 195(1). Therefore, it is needless to state that if there is a non-compliance with the provisions of Section 195, the Magistrate will has e no jurisdiction to take cognisance of any of the offences enumerated therein." 33. However, it is a case relating to the time when the Cr. P.C. had not been amended i.e. prior to 1973 and that time, the bar of Section 195 (1) Cr. P.C. was available only when the offence was alleged to have been committed by a party to any proceeding in any Court...", and since in this case, the offence had been committed by the Magistrate himself who was not a party to any proceeding in the Court, it was held that Section 195 (1)(b) or (c) of the Code did not apply, but in the light of the amended Cr. P.C. in which there are no words "by a party to any proceedings in any Court", bar of Section 195 is available and the remand of Shri Harbans Lal Khurana to judicial custody by the Magistrate is without jurisdiction. 34. In Ranrdeo Mahto's case (supra), Patna High Court, while dealing with the principles of right to liberty, habeas corpus and the power to remand the accused to the custody, observed as under, in para 14: "Right to liberty of person is a fundamental human right. It is not granted by any particular statute. It cannot be said that society or State grants a man a right to liberty. If he has the right to liberty his liberty can he curtailed only by law in interest of society. Thus, the curtailment of this human right is to he provided for by law. It is not granted by any particular statute. It cannot be said that society or State grants a man a right to liberty. If he has the right to liberty his liberty can he curtailed only by law in interest of society. Thus, the curtailment of this human right is to he provided for by law. It a person has been. illegally arrested and detained, in the absence of any law providing therefor, he has got to he released. The converse is not true that he has to be kept under detention unless there is a law providing for his release. That would be putting the cart before the horse to use a hackneyed expression. A Court of justice has to decide at that point of time whether or not he has been legally arrested or is being legally detained. That is the fundamental concept underlying the law relating to habeas corpus. The argument thus that a Court must be deemed to have an inherent right to help a man under detention in the absence of any law providing for that, is too big a pill to swallow. Apart from this academic approach, I am fortified in my view by a decision of the Supreme Court which clearly repels the argument. Referring to the very same case of Natabar Parida ( AIR 1975 SC. 1465 ) (supra) it would appear that their Lord- ships said as follows: "It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law." That being the law Laid down by the Supreme Court the argument of learned Counsel for the State must be rejected." 35. The Full Bench decision in Harbans Singh's case (supra), which was cited by the learned Advocate General deals with the scope of Section 195(1)(b)(ii) and 340 Cr. The Full Bench decision in Harbans Singh's case (supra), which was cited by the learned Advocate General deals with the scope of Section 195(1)(b)(ii) and 340 Cr. P.C. In this judgment of Harbans Singh, the case of Gopal Krishna Menon (supra) and the effect of the deletion of the words 'by a party to any proceedings in any Court' from Section 195(l)(c) Cr.P.C. 1898, while enacting Section 195(1)(b)(ii) of the Cr.P.C. 1973 has been considered in detail and it has been held in the end of the judgment, in para 18, that Section 195(1)(b)(ii) of the New Code is limited in its operation only to the offences mentioned in this Section if committed in regard to a document produced or given in evidence in such proceedings while the document is in the custody of the Court. In the case at hand, the offence has been committed with regard to a document which has a part and parcel of the record and proceedings before the Court, and as such, we fail to appreciate as to what is there in this judgment which can be said to he against the submission made on behalf of the petitioner. 36. We find that in the instant case, the allegations constitute an offence punishable u/ Section 193 IPC committed in and in relation to the proceeding in the Court and further the offence alleged to have been committed is an offence described in Section 463 IPC punishableunder section 471 IPC and the offence has been committed in respect of a document produced in the proceedings in the Court and therefore, there was no question of taking cognisance of this offence unless there was a complaint in writing by the Court concerned and in want of such a complaint in writing by the Court concerned, the cognisance of the offence could not have been taken and hence, the cognisance of the offence taken in the instant case was unlawful and invalid. 37. Having gone through the various provisions and the authorities which have been cited before us, we are of the opinion that Section 167 Cr. P.C. gives the power to the Magistrate to remand an accused to the judicial custody during the pendency of the investigation only and once the challan has been filed, the accused can he remanded to the jail custody only under Section 309 Cr. P.C. gives the power to the Magistrate to remand an accused to the judicial custody during the pendency of the investigation only and once the challan has been filed, the accused can he remanded to the jail custody only under Section 309 Cr. P.C. In the case at hand, the challan had already been filed and therefore, if at all the accused Harbans Lal Khurana was to be remanded, he could be so remanded to judicial custody onlyunder section 309(2) Cr.P.C. The stage of remand order u /Sec. 309 (2) Cr. P.C. comes only after taking cognizance of an offence. Thus, taking of cognisance of an offence is a condition precedent or pre-requisite for exercise of power u /Sec. 309 (2) Cr. P.C. and unless and until, there is a lawful cognisance there is no question of exercise of power to remand the accused to the custody and if any such order remanding the accused is passed in absence of cognisance taken in accordance with law, it will be a case of passing an order of remand in invalid exercise of the power. If any order is passed in invalid exercise of power, it is certainly an order without jurisdiction and the same cannot be allowed to be acted upon much less to imperil the liberty of any citizen under Article 21 of the Constitution of India. 38. I n view of our findings as aforesaid, it is clearly a case of unlawful cognisance in want of a complaint in writing by the concerned Magistrate and hence, there was no question of any order of remand of Shri Harbans Lal Khurna to the judicial custody and consequently, we hold that Shri Harbans Lal Khurana is in unlawful custody and deserves to be released forth with. During the course of arguments, the learned Advocate General had very frankly stated that so far as the liberty of Shri Harbans Lal Khurana is concerned, it may be decided on the basis of the legal position as is adjudged but the State's anxiety was that the culprit should not be allowed to go to free and in this regard, appropriate directions may be given. Mr. S.R. Bajwa, in all fairness, has also invited our attention to Lal it Mohan Mondal and Other v. Benogendra Nath Chatterjee ( AIR 1982 SC. Mr. S.R. Bajwa, in all fairness, has also invited our attention to Lal it Mohan Mondal and Other v. Benogendra Nath Chatterjee ( AIR 1982 SC. 785 ) in this regard in which their lordships of the Supreme Court have observed an held as under: "We have heard Counsel for the parties and have gone through the judgment of the High Court. We agree with the High Court that against an order passed in appeal under Section 341 of the Criminal Procedure Code the order would not be revisable by the High Court under Sec'. 397(2) of the Criminal P.C., but there can be no doubt that the Court is entitled to examine the matter under Section 482 of the Criminal Procedure Code which expressly overrules the bar contained in Section 341 of the Code. In the instant case, the High Court has merely indicated that this is not a fit case for invoking the inherent power without at all applying its mind whether or not in the circumstances, it gas a fit case for filing a complaint , particularly when the matter rested merely on oath against oath. For this reason, therefore, we allow this appeal and remit the case to the High Court to send for the records and satisfy itself whether the order directing complaint to be filed is expedient in the interest of justice, so as to attract its inherent jurisdiction under Section 482 of the Code. Meanwhile, further proceedings will be stayed." 39. We have considered this aspect of the matter and we are of the considered opinion that it is a fit case in which we may direct the Court concerned, where the original civil suit was pending, to address itself to all the relevant considerations with reference to Section 195 read with Section 340 Cr. P.C. for the purpose of deciding the question of filing the complaint against the culprits. 40. The net result of the adjudication as aforesaid is that this habeas corpus petition succeeds and is allowed. We hold that there was no valid cognizance and therefore, Shri Harbans Lal could not have been sent to the judicial custody. He is in unlawful custody. 40. The net result of the adjudication as aforesaid is that this habeas corpus petition succeeds and is allowed. We hold that there was no valid cognizance and therefore, Shri Harbans Lal could not have been sent to the judicial custody. He is in unlawful custody. It is ordered that Harbans Lal shall be released forthwith in case FIR No. 97/1992 regarding which Regular Criminal Case No. 624/1992 is pending trial before the A.C.J.M. No. 1, Jaipur City, Jaipur, if not required in any other case. We further direct the A.M.J.M. No. 4, Jaipur City, Jaipur to consider the whole matter and after due and active application of mind on objective standards, he may decide the question within a period of two months as to whether any complaint in this matter arising out of Civil Suit No. 106/81 is to be filed u/ Section 195 read with Section 340 Cr. P.C. 41. During the course of the dictation of this order it was found that Civil Suit in question i.e. Suit No. 1106/81 has been transferred to some other Court from the Court of A.M.J.M. No. 4, Jaipur City, Jaipur. We, therefore, direct that if the civil suit has been transferred from the Court of A.M.J.M. No. 4, Jaipur City to any other Court from the Court of A.C.J.M. No. 1, Jaipur City, Jaipur, the aforesaid directions given by us would apply to such Courts with such number of the cases as the same may have been Numbered in the respective Courts of our directions as aforesaid shall be carried out accordingly.Petition allowed. *******