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1996 DIGILAW 232 (RAJ)

Surjit Singh v. Balbir Singh

1996-02-29

G.B.PATTANAIK, K.RAMASWAMY, S.SAGHIR AHMAD

body1996
Honble RAMASWAMY, J. – Question of law referred to this Bench is : Whether the Criminal Court is debarred from proceeding with the private complaint laid against the appellants on 13.6.1983 for offences punishable u/ss. 468 & 471 of Indian Penal Code (for short, the IPC)? The respondent had laid the complaint for offences punishable u/ss. 420,467,468,471 r/w Sec. 120-B, IPC with the allegations that the appellants had conspired and fabricated an agreement dated 26.6.1978 and forged the signature of Smt. Dalip Kaur and on the basis there of they attempted to claim retention of the possession of the remaining part of the house. The Magistrate, Amritsar had examined witnesses u/s.202 of the Code of Criminal Procedure, 1973 (for short,the Code) and ordered issue of process summoning the appellants to appear on 27.9.1983. It would appear that the appellant filed Civil Suit for an injunction to restrain Dalip Kaur from interfering with the possession of appellants 1 to 3 and he produced the agreement dated 21.2.1984 which was said to have been executed and signed by Dalip Kaur. Thereafter,the appellants filed an application to quash the complaint on the ground of bar u/s. 195 of the Code. The Magistrate and on revision the Sessions Judge dismissed the same. When the revision was filed in the High Court of Punjab& Haryana, on a question of law ultimately the matter was referred to Full Bench which had answered the question against the appellants and remitted the matter to the referring Judge.The learned single Judge in the impugned order dated 4.8.1986 has dismissed the revision. Thus this appeal by special leave. (2). The only question is : whether the Magistrate, 1st Class at Amritsar is devoid of jurisdiction to take cognizance of the offence. Shri Markandaya, learned counsel for the appellants placing strong reliance on the judgments of this Court in Gopal Krishna Menon & Anr. vs. D. Raja Reddy & Anr. (1) and Patel Laljibhai & Somabhai vs. State of Gujrat (2), contended that once the document has been produced before the Court, it is the Civil Court that has seisin of the matter. It alone or an officer on its behalf has to lay the complaint in writing. The private complaint laid by the respondent is not maintainable. The Criminal Court,therefore, cannot proceed with the trial. It alone or an officer on its behalf has to lay the complaint in writing. The private complaint laid by the respondent is not maintainable. The Criminal Court,therefore, cannot proceed with the trial. With a view to appreciate the contention it is necessary to reiterate the scope of Sec. 195 of the Code which creates an embargo on the power of the Court to take cognizance of the offence. (3). Section 195(1)(b)(ii) reads that no Court shall take cognizance`` of any offence described in Sec. 463,or punishable u/ss. 471,475 or 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. (4). This Court in Budhu Ram vs. State of Raj. (3), considered the scope of Sec. 195 and held thus : "It will be seen on a plain grammatical construction of this provision that a complaint by the Court is required where the offence is of forging or of using as genuine any document which is know or believed to be a forged document when such document is produced or given in evidence in Court. It is clear therefore that it is only when the forged document is produced in Court that a complaint by the Court is required. Where, however, what is produced before the Court is not the forged document itself, Sec. 195 (c) will not apply on its terms. The reason for this, as stated by the Judicial Committee, is the practical common sense of the matter, for the Court before which a copy of a document is produced is not really in a position to express any opinion on the genuineness of the original. Therefore, even if the Assistant Settlement Officer is assumed to be a Court within the meaning of Sec. 195(1)(c) no complaint was necessary because the forged document itself was not produced before the Assistant Settle- ment Officer in this case but only a copy thereof." In this case it was held that since the copy of the document was produced Sec. 195 of the Code was not a bar to lay private complaint. (5). The purpose of imposing embargo created by Sec. 195 was considered in Patel Laljibhais case (supra). (5). The purpose of imposing embargo created by Sec. 195 was considered in Patel Laljibhais case (supra). This Court held at pages 841-42 thus: "The underlying purpose of enacting Sec. 195 (1)(b) & (c) and Sec. 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions of frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the Courts control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the Courts and thereby perver- ting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the Court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the Court for persuading it to file the complaint. But such party is deprived of the general right recognised by Sec. 190 Cr.P.C. of the aggrieved parties directly initiating the criminal proceeding. The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to procee- ding in the Court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry,satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. 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 those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party." At page 846 it was stated that : "Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kaushal Pal Singhs case (ILR 1953 All.804). This in our opinion reflects the better view. The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Sec. 195 (1)(b) & (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the Court in which forged documents are produced or false evidence is led and the conclusions of the Criminal Courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party." (6).The object thereby is to protect persons from needless harassment by prosecution for private vendetta; to preserve purity of the judicial process and unsullied administration of justice; to prevent the parties of the temptation to pre-empt the proceedings pending in a Court and to pressure and desist parties from proceeding with the case. Equally when the act complained of relates to an offence, i.e. contempt to lawful authority of public servant,or against public justice or for offences relating to documents produced or given in evidence, public justice demands absolute bar of private prosecution and that power be given to the Court to lay complaint u/s. 340 of the Code as per the procedure prescribed therein. In Patel Laljibhais case (supra) the main controversy was as to when the accused had become a party to the proceedings. However, after the Code came into force in 1974 replacing the earlier Code of 1898 it was omitted and so it is no longer of any relevance. In Patel Laljibhais case (supra) the main controversy was as to when the accused had become a party to the proceedings. However, after the Code came into force in 1974 replacing the earlier Code of 1898 it was omitted and so it is no longer of any relevance. It is seen that the appellants therein had filed a civil suit on the basis of a cheque dated 22.11.1963 and the civil suit had come to be dismissed on 30.1. 1965. Thereafter, the private complaint was filed on 16.11.1965. In the light of those facts it was held that the respondent was a party to the proceedings in the suit and that, therefore,the private complaint was not maintainable. (7). In Gopal Krishna Menons case (supra), the facts were that the suit was laid on the basis of an agreement dated 3.11.1980 and also a receipt of even date for the recovery of the amounts on the basis of the said agreement. Along with the plaint the agreement and also the receipts were produced in the Court. Subsequently, a complaint was filed for offence u/ss. 467 & 471, IPC. It was contended that Sec. 467 (1) (b)(ii) was a bar. That was negatived by the High Court. This Court considering Secs. 340 & 195 of the Code had held that as soon as it is accepted that Sec. 474 punishes forgery of a particular category, Sec. 195(1)b (ii) immediately gets attracted. On the basis that the offence punishable u/s. 467 is an offence u/s. 463 committed in the proceedings of the Court and in the absence of a complaint by this Court, prosecution was held to be not maintainable. In Sushil Kumar vs. State of Haryana (4), the question was when a copy of the original document is produced and a private complaint is laid on the basis of a copy of the forged agreement, whether bar of Sec. 195(1)(b)(ii) gets attracted. This Court had held that until the original document is produced in the Court, there is no bar of Sec. 195 and that, therefore, the private complaint was held not barred. This Court had held that until the original document is produced in the Court, there is no bar of Sec. 195 and that, therefore, the private complaint was held not barred. In Sanmukh Singh vs. The King (5), the Privy Council also had held that where the document in respect of which a charge of forgery had been made against the accused had not itself been produced or given in evidence in certain proceedings but on the contrary a copy of it had been produced, the absence of complaint u/s. 195 (1)(c) cannot operate as a bar to the trial of the accused. (8). It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the Court or given in evidence, the bar of taking cognizance u/s. 195(1)(b)(ii) gets attracted and the criminal Court is prohibited to take cognizance of offence unless a complaint in writing is filed as per the procedure prescribed u/s.340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Sec. 195 is to take cognizance of the offences covered thereunder. (9). It is seen that in this case cognizance was taken by the criminal Court on 27.9.1983 and the original agreement appears to have been filed in the civil Court on 9.2.1984 long after cognizance was taken by the Magistrate. It is settled law that once cognizance is taken, two courses are open to the Magistrate, namely, either to discharge the accused if the evidence does not disclose the offence or to acquit of the accused after the full trial. Unless either of the two courses is taken and orders passed, the cognizance duly taken cannot be set at nought. In this case since cognizance was already taken before filing of the document in the civil Court and the original has not been filed before cognizance was taken, the High Court was right in directing that the Magistrate is at liberty to proceed with the trial of the cri- minal case. The appeal is accordingly dismissed.