Lalan Kishore Prasad v. State Of Bihar — 1996 DIGILAW 17 (PAT)

Judgment S.N.Jha, J. 1. In this application under Article 226 of the Constitution of India the petitioner seeks quashing of his prosecution in Pindrajore P.S. Case No. 81 of 1993 in which cognizance has been taken against him and others for offences under Secs. 465, 466, 468, 471, 474 and 476 read with Sec. 120-B, Indian Penal Code. The facts of the case so far as relevant for the purpose of this application are as follows: 2. One Sanjay Kumar Singh figures as an accused in B.S. City P.S. Case No. 205/93 under Secs. 394, 397 and 411 of the Penal Code. His prayer for bail was rejected by the Chief Judicial Magistrate, Chas and, in course of time, by the Additional Sessions Judge, Chas as well as by this Court on 31.3.1993. On 22.7.1993 one Bir Bahadur Singh, advocate practicing at Chas, filed an application to the effect that Sanjay Kumar Singh has been granted bail by the High Court in Criminal Misc. No. 2706 of 1993 (R). Along with the application certified copy of the order dated 9.6.1993 allegedly passed in Cr. Misc. No. 2706 of 1993 (R) was also filed. An affidavit sworn by Bir Bhadur Singh himself to that effect was also filed. In that affidavit he was identified by one H.P. Singh, another advocate practicing at Chas. The petitioner who too is an advocate praactising at Chas also filed an application along with affidavit sworn by himself to the above effect on 26.6.1993 stating further that he had brought the certified copy of the bail order from the Ranchi Bench of this Court. In that affidavit he was identified by one S.N. Roy, another advocate of Chas. He also filed bail bond on behalf of Dular Chand Chaudhary and Chandradeo Singh. The bailors were identified by the petitioner himself. The bail bond, in the circumstances, was accepted and Sanjay Kumar Singh was released. 3. The Chief Judicial Magistrate, later on 3.11.1993 enquired from the Joint Registrar, Ranchi Bench of this Court regarding the genuineness of the certified -copy of the bail order when he learnt about the detection of certain forged and fabricated bail orders at Dhanbad. The Joint Registrar by letter dated 23.11.1993 informed the C.J.M. that no such order with respect to Sanjay Kumar Singh had been passed in Cr. Misc. The Joint Registrar by letter dated 23.11.1993 informed the C.J.M. that no such order with respect to Sanjay Kumar Singh had been passed in Cr. Misc. No. 2706 of 1993 (R) which related to the Buddhu Munda, an accused in Khutni P.S. Case No. 150/93 and no connection with B.S. City P.S. Case No. 205/92. On the basis of the said letter the C.J.M. concluded that the certified copy on the basis of which Sanjay Kumar Singh had been released on bail was a forged and fabricated document. He held preliminary enquiry in course of which the said H.P. Singh and S.N. Roy stated that they had, respectively identified the signatures of Bir Bahadur Singh and the petitioner at their request and they had nothing to do in the matter. In the said enquiry Bir Bahadur Singh also filed a petition that it was the petitioner who had delivered the certified copy of the bail order and asked him to furnish bail bond as he was not expected to be present in court on 22.7.1993 (when Bir Bahadur Singh filed the application and the affidavit). 4. On 4.12.1993 the C.J.M. lodged an FIR with the officer-in-charge, Pindrajore Police Station stating the aforesaid facts which was registered as Pinrajore P.S. Case No. 81 of 1993. In course of time the police submitted charge-sheet against the petitioner as well as Bir Bahadur Singh and said Chandradeo Singh and Dularchand Choudhary, the alleged sureties (showing them as absconders as their whereabouts could not be found) and Krishna Kumar Choudhary. Cognizance was taken under Secs. 465, 466, 471, 474, 476 read with Sec. 120-B of the Penal Code on 26.4.994. 5. This application was admitted on 1.11.1994 and ordered to be heard by a Division Bench. It came up for hearing before a Division Bench consisting of R.N. Sahay, J. and P.K Deb, J. The learned Judges arrived at different conclusions and delivered their dissenting judgments on 27.7.1995. In view of the difference of opinion the case was reported to a third Judge and that is how the case came up for hearing before me. 6. It came up for hearing before a Division Bench consisting of R.N. Sahay, J. and P.K Deb, J. The learned Judges arrived at different conclusions and delivered their dissenting judgments on 27.7.1995. In view of the difference of opinion the case was reported to a third Judge and that is how the case came up for hearing before me. 6. The point urged before the Division Bench and reiterated before me on behalf of the petitioner is that in view of the provisions of Sec. 195(1)(b)(ii) of the Code of Criminal Procedure, the petitioner cannot be prosecuted with respect to the alleged offences save and except after an enquiry under Sec. 340 of the Code and on the complaint of the court concerned cognizance taken on the basis of the police report and the entire prosecution are, therefore, illegal and without jurisdiction. P.K. Deb, J. In this Judgment has come to the conclusion that the offence of forgery was already complete before the document i.e. the certified copy of the bail order was produced in the court of C.J.M. and, therefore, the bar of Sec. 195(1)(b)(ii) is not applicable. In the words of the learned Judge, "forgery was committed definitely outside the scope of the court of the Chief Judicial Magistrate, Chas either the bail order was forged and then the copy of the same was made and get it certified and then filed before the Court of Chief Judicial Magistrate, Chas or the certified copy itself was forged that too outside the court and then filed the same for the purpose of getting the release of the accused from Jail". R.N. Sahay, J. on the other hand has held that "the bar imposed by Sec. 195(1)(b)(ii) applies and hence the first information report filed by C.J.M. in ignorance of the provision of law and consequent cognizance taken in the case are illegal and without jurisdiction." 7. The relevant provision of Sec. 195(1)(b)(ii) of the Code may be quoted at this stage as hereunder: 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 cognizance-- (a) (i)... (ii) ... (iii) ... The relevant provision of Sec. 195(1)(b)(ii) of the Code may be quoted at this stage as hereunder: 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 cognizance-- (a) (i)... (ii) ... (iii) ... (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, or (iii) of any criminal conspiracy to commit, or attempt to commit or the abatement 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. It may be stated here that Sec. 195(1)(b)(ii) corresponds to Section 195(1)(c) of the old Criminal Procedure Code of 1898. 8 Sec. 195 and Sections following up to Sec. 199 provide for exception to the general rule that any person may prefer complaint in respect of a criminal offence. So far as offences mentioned in Sec. 195 are concerned, owing to the character of those offences affecting the lawful authority of public servant or public Justice, the right to prosecute has been restricted and courts are prohibited from taking cognizance of the offences mentioned therein unless and until the public servants or-the courts concerned (or their superior officers or courts) make the complaint. In order to chek misuse of machinery or criminal prosecution by "unconcerned persons on frivolous, vexatious or insufficient grounds, inspired by revengeful desire to harass their opponents." 9. In the present case cognizance had been taken also for offences which are not specified in Sec. 195(1)(b)(ii) of the Code. But in view of the nature of dominant offence, namely, forgery, there can hardly be any doubt that addition of Secs. 466, 467, 468, 474 and 120-B does not materially alter the nature of the case, in the context of Sec. 195(1)(b)(ii). But in view of the nature of dominant offence, namely, forgery, there can hardly be any doubt that addition of Secs. 466, 467, 468, 474 and 120-B does not materially alter the nature of the case, in the context of Sec. 195(1)(b)(ii). The settled view appears to be that while considering the applicability of the provisions of Sec. 195, fact have to be considered as a whole, without splitting them up and where the disclose a specific or graver offence requiring a complaint by the public servant or the court, Sec. 195 cannot be evaded by electing to prosecute for a general or lesser offence for which no such complaint is necessary. I may state here that counsel for the parties also did not advance any argument one way or the other in this regard. The submissions on the question of bar of prosecution were made irrespective of the fact that cognizance has been taken for offences under other Sections of the Penal Code as well. 10. As the Supreme Court in the case of Copal Krishna Menon V/s. D. Raj Reddy -- has observed, Sec. 195(1)(b)(ii) uses two different expressions, in regard to Sec. 463 of the Indian Penal Code it says, "offend described" while in regard to Secs. 471 and 475 or 476, it says, "punishable It would thus appear that the section covers within its fold different species (sic) the offence of forgery. It was on this logic that the Supreme Court held in the case that the offence punishable under Sec. 467 of the Penal Code is a offence described in Sec. 463 and in the absence of a complaint by the Court prosecution by a private party was not maintainable. We have, therefore, (sic) consider in the instant case whether for the offence of forgery as described (sic) Sec. 463, which is the main offence alleged, prosecution can be launched only on the complaint by the court. As stated in the outset, the prosecution (sic) been launched at the instance of the C.J.M., i.e. court itself but instead (sic) making a complaint within the meaning of Sec. 2(d) of the Code an FIR (sic) lodged with the police and cognizance has been taken on the basis of (sic) charge-sheet, i.e. police report and not complaint. 11. As stated in the outset, the prosecution (sic) been launched at the instance of the C.J.M., i.e. court itself but instead (sic) making a complaint within the meaning of Sec. 2(d) of the Code an FIR (sic) lodged with the police and cognizance has been taken on the basis of (sic) charge-sheet, i.e. police report and not complaint. 11. Sec. 463 of the Penal Code defines forgery in the following words: Whoever makes any false document or part of a document with (sic) to cause damage or injury, to the public or to any person...(sic) with intent to commit fraud or that fraud may be committed commits forgery. From the above definition it is clear that no sooner a person makes a (sic) document intending, inter alia, to commit any fraud or intending that fraud (sic) be committed, forgery is committed. The offence is committed then and there (sic) The offence of forgery is complete if a document, false in fact, is made wit (sic) intent to commit a fraud, although it may not have been made with anyone (sic) the other intents specified in Sec. 463. Its noteworthy that the term frauc (sic) has not been defined in the Penal Code. Sec. 25 of the Penal Code, however (sic) defines the term fraudulently as doing a thing with intent to defraud. I do (sic) think there is any material difference between the two expressions. If it (sic) established that a person had done anything with intent to commit a (sic) there cannot be any doubt that he did it with one of the intents specified under Sec. 463 and that he had also acted fraudulently. It is not necessary the (sic) there should be a person who is in the position of being defrauded; anythin (sic) done with intent to defraud amounts to committing forgery. There cannot be an (sic) doubt that making a false bail order amounts to intending to commit fraud (sic) intending that fraud may be committed. 12. There is no dispute that certified copy of the bail order, on the basis of which Sanjay Kumar Singh was released was a false and fabricated document and that the document was made "with intent to commit fraud or that fraud may be committed". 12. There is no dispute that certified copy of the bail order, on the basis of which Sanjay Kumar Singh was released was a false and fabricated document and that the document was made "with intent to commit fraud or that fraud may be committed". In the above premises I am clearly of the opinion that the offence of forgery was already complete before the document was produced in the court of Chief Judicial Magistrate. 13. In interpreting Sec. 195 of the Code, the Supreme Court in Patel Laljibhai V/s. State of Gujarat -- noted the two divergent views expressed by the different High Courts thus: According to one view, to attract the prohibition contained in Clause (c) the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means after having become a party to the proceeding whereas according to the other view, the alleged offence may have been committed by the accused even prior to his becoming a party to the proceeding provided that the document in question is produced or given in evidence in such proceeding. The language used seems to us to be capable of cither meaning without straining it. An held in paragraph-7 of the judgment-- ...It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Sec. 195(1)(c) only to these cases in which the offences specified therein were committed by a party to the proceeding in the character as such party. The above view was reiterated in Raghunath V/s. State of U.P. -- ; Mohan Lal V/s. State of Rajasthan -- and Legal Remembrancer of Government of West Bengal V/s. Haridas Mundra -- . In the last mentioned case, the accused respondent was alleged to have used forged bills to defraud the company. A company petition under Secs. 397 and 398 of the Indian Companies Act was filed by the share holders and Special Officer was appointed to manage the affairs of the company. The prosecution was initiated by the Special Officer on the direction of the Company Judge. Later, however, the Company Judge discharged the accused in view of the provisions of Section 195(1)(c) of the (old) Code. The prosecution was initiated by the Special Officer on the direction of the Company Judge. Later, however, the Company Judge discharged the accused in view of the provisions of Section 195(1)(c) of the (old) Code. The Supreme Court in appeal by the State set aside the order on the ground that the offence under Sec. 471, IPC had allegedly been committed before commencement of the proceeding under the Companies Act and before the accused became party to the proceeding. 14. The decisions of the Supreme Court thus clearly held that complaint of court is not necessary when the offence is committed before the commencement of the proceeding in court. 15. It is, however, noteworthy, and this was one of submissions of the counsel for the petitioner that the words by a party to any proceeding in any court which occurred in the corresponding Sec. 195(1)(c) of the old Code have been omitted from the Section in the new Code. But for the reasons stated hereinafter, the omission does not appear to be of any material consequence so far as the nature and scope of the provision is concerned. In this connection it would be appropriate to refer to the 41st Report of the Law Commission, paragraph 15.93 whereof runs as follows: It will be noticed that while Clause (b) applies when any of the specified offences is committed in, or in relation to, any proceeding in any court, Clause (c) applies only when the offence of forgery etc. is alleged to have been committed by a party to any proceeding in court in respect of a document produced or given in evidence in such proceedings. An important point that has to be considered here is whether the restriction of the application of the Section to a party to the proceeding should be retained. The purpose of the Section is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the court itself to uphold its dignity and prestige. On principle, there is no reason why the safeguard in Clause (c) should not apply to offences committed by witnesses also. Witnesses need as such protection against vexatious prosecution as the parties and the Court should have as much control over the acts of witnesses that enter, as a component of a judicial proceedings, as over the acts of parties. On principle, there is no reason why the safeguard in Clause (c) should not apply to offences committed by witnesses also. Witnesses need as such protection against vexatious prosecution as the parties and the Court should have as much control over the acts of witnesses that enter, as a component of a judicial proceedings, as over the acts of parties. It, therefore, the provisions of Clause (c) are extended to witness, the extension would be in conformity with the broad principles which form the basis of Sec. 195. The framer of the Code accepted the recommendation and deleted the words by a party to any proceeding in any Court so that the courts right to file complaint was not confined to a party. The deletion was not intended to affect the right in respect of the offences committed prior to the proceedings in court, which was not the object farthest, in their minds. 16. The right to file a complaint is contained in Sec. 190 of Code. Section 195, curtails this right with respect to certain specified offences where it is the court alone which can file the complaint. The content of this restriction has therefore to be confined within reasonable limits keeping in view "the real purpose and object underlying the two sections." The court is not concerned with any offence which has no close nexus with the proceedings in court. The court cannot satisfactorily determine the question of expediency of making a complaint in respect of an offence allegedly committed prior to the commencement of the proceedings. Thus With or without the words "by a party to any proceeding in any court", the same object is achieved and it is for this reason that the Law Commission proposed and the new Code omitted these words intending that the principle laid down by the Supreme Court, which the framers of the Code would be presumed to be aware of, would even then apply. The broad principles laid down by the Supreme Court with respect to the applicability of the provisions of Sec.195 thus remains untouched. 17. Another reason why the deletion of words by a party to proceeding in any court is in consequential emanates from the nature and scope of enquiry under Sec.340 of the Code which is a precursor to the filing of the complaint under Sec. 195 (2) (b) of the code. 17. Another reason why the deletion of words by a party to proceeding in any court is in consequential emanates from the nature and scope of enquiry under Sec.340 of the Code which is a precursor to the filing of the complaint under Sec. 195 (2) (b) of the code. It would be apt to notice the observation of the Supreme Court in -- as hereunder: It is no doubt true that quite often, if not almost invariably, the documents are forged for being used or produced in evidence in Court before the proceedings are started. But that in our opinion cannot be the controlling factor, because to adopt that construction documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party would also be subject to Secs. 195 and 476, Cr.P.C This in our opinion would unreasonably restrict the right possessed by a person and recognised by Sec. 190, Cr.P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint. 18. The Kerala High Court in Philip V/s. Raphael 1985 Crl L.J. 126, and Punjab and Haryana High Court in Karnail Singh V/s. State of Punjab 1983 Crl. L.J. 713 were approved by Full Bench of that court in Harbans Singh V/s. State of Punjab AIR 1987 Punj and Har 19, have held that the deletion of words "by a party to any proceeding in any court does not materially alter the nature and content of the provisions of Sec. 195(1)(b) (ii) of the Code. The following observations of the Punjab and Haryana High Court in Karnail Singhs case may usefully be noticed: In view of the wholly settled stated of law declared by the Supreme Court under Sec. 195(1)(c) of the old code, all that now remains is to examine the marginal change in the language of Sec. 195(1)(b)(ii) of the Code by deleting the words: by a party to any proceeding in any Court. "There is no indication that in doing so, whilst enacting the new Code, Parliament intended to make any radical change or departure from the settled law earlier. "There is no indication that in doing so, whilst enacting the new Code, Parliament intended to make any radical change or departure from the settled law earlier. It is well settled that the Legislature is presumed to know the existing state of law when making a change or amendment in the statue. The Statement of Objects and Reasons and the detailed notes on clauses of the Cr.P.C. 1973, give no indication of materially altering or overriding the earlier presidential construction of the predecessor provision. It, therefore, seems inapt to read more into the marginal change than the plain words thereof would indicate. To my mind the deletion of the words by a party to any proceeding in any court in Sec. 195(1)(b)(ii) of the Code has only the effect of enlarging the protection envisaged by the section to the witnesses, scribes attestors, etc. of the document with regard to which the offence has been committed. This class of persons would now be equally within the ambit of the provision irrespective of the fact whether they are parties to the proceedings or not. Apart from this, I am unable to read any other meaningful change brought in law in this context. All other considerations authoritatively noticed in the precedents referred to above with regard to the larger principles of interpretation, the aptness of the narrower construction, the other provisions of the Code including Sec. 476, etc. remain as much applicable and relevant to Sec. 195(1)(b)(ii) of the Code as they were to its predecessor provision. Consequently, the binding precedent applicable to the earlier provisions of Sec. 195(1)(c) of the old Code be equally attracted in the case of the present provision subject to the marginal change noticed above. 19. In the above view of the matter, the Kerala High Court in the case of Philip v. Raphael (supra), has held: Sec.195 (1 (b), Cr.P.C. 1973 therefore, postulates that the court can file a complaint in respect of the specified offences, when a document is produced or received in evidence in any proceeding in court only when the offence is committed after the commencement of the proceedings. Punjab and Haryana High Court in Harbans Singh V/s. State of Punjab (supra), has held: Sec.195(1)(b)(ii) of the new Code envisaging bar against prosecution except on complaint of the Civil Court is limited in its operation only to the offences mentioned in that 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. It has no application to a case in which such a document is fabricated prior to its production or given in evidence. I am in respectful agreement with the above said views. 20 Counsel for the petitioner placed heavy reliance on the decision of the Supreme Court in Gopal Krishna Menan case -- . The decision in my opinion does not lend any assistance to the petitioner, the point for consideration in that case was entirely different. A money receipt for Rs. 20,000 was produced in court in a pending suit to show that money involved in the suit had already been paid. The other side disputing this contention filed a complaint alleging forgery of signature on the money receipt. The accused challenged the maintainability of the criminal case under Secs. 467 and 471 on the ground that in view of the provisions of Sec. 195(1)(b)(ii) he could be prosecuted only on the complaint by the court concerned where the alleged forged receipt had been produced. The Andhra Pradesh High Court rejected the contention holding that Sec. 463 cannot be construed to include Sec. 467 and, therefore, the Magistrate was competent to take cognizance on the private complaint, (Section 467 in terms is not mentioned in Sec. 195(1)(b)(ii). The question for consideration before the Supreme court was, in the words of their Lordships, "whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offence punishable under Secs. 467 and 471 read with Sec. 34 of the Indian Penal Code would be maintainable." The Supreme Court quoted Secs. 467 and 471 read with Sec. 34 of the Indian Penal Code would be maintainable." The Supreme Court quoted Secs. 463 and 467 of the Penal Code and observed that while Sec. 463 defines forgery, Section 467 provides for punishment for forgery of a particular category; and if it is so, in view of the provision of Sec. 195(1)(b)(ii) which mentions about all the offences "as described in Sec. 463", the bar provided in that Section would immediately be attracted because the offence punishable under Sec. 467 of the Penal Code is an offence prescribed under Sec. 463 and, therefore, in the absence of any complaint by the court concerned the prosecution was not maintainable. The order of the High Court was accordingly set aside. The observation of the Supreme Court occurring in paragraph-5 of the judgment. "If Sec.195(1)(b)(ii) is attracted to facts of the present case, in the absence of a complaint in writing of the civil court where the alleged forged receipt had been produced, taking of cognizance of the offence would be bad in law " have to be understood in that context. The Punjab and Haryana High Court in the case of Harbans Singh (supra), has held that the observations were made after assuming the fact that the provision of Sec. 195(1)(b)(ii) was applicable which is clear from the fact that the observations start with the word "if". I may add that it would be tautological to say that where the bar of Section 195(1)(b)(i) is attracted prosecution on the basis of the private complaint is not maintainable. The decision of the Supreme Court is not to be read as laying down something which is so obvious. The decision is an authority on the point that although an offence is not specified in Sec. 195(1)(b)(ii) but if it comes within "description of the offence of forgery under Sec. 463, the bar would be applicable. The decision in my opinion, thus is of no avail to the petitioner. 21. The Supreme Court in a recent case of Mahadeo Bapuji Mahajan V/s. State of Maharashtra 1994 Supp (3) SCC 748 : 1994 Cr.L.J. 1389, while considering similar question has held that as the offence had been committed before the start of the proceeding thus complaint by the court was necessary either in the old Code or in the new code. 22. 22. For the reasons stated above, in agreement with Brother P.K. Deb, I hold that the offence of making and fabricating the false document, namely, the bail order had already, been committed before it was produced in the court the provision of Sec. 195(1)(b)(ii) will not be applicable and, therefore, there is no illegality in the prosecution. 23. I am also inclined to agree with the observations made by Brother Deb, in his judgment about on going racket involving forged and fake bail orders touching upon the administration of justice. It is not an ordinary case of making false document and producing the same in court which could be properly enquired into under Sec. 340, Cr.P.C. Since the case has wide ramifications and the whole administration of justice is at a stake, different aspects of the case could be gone into and the real persons involved in the racket could be brought to book only after a full-fledged investigation by the police. 24. In the result, I would dismiss this application.