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2000 DIGILAW 12 (ORI)

SATYABRATA MOHANTY v. STATE OF ORISSA

2000-01-05

P.K.TRIPATHY

body2000
P. K. TRIPATHY, J. ( 1 ) IN this application under Section 482 of the Criminal Procedure Code, 1973 (in short 'the Code') petitioner has assailed correctness of the order passed by the S. D. J. M. (Sadar), Cuttack on 22-11-96 in C. A. Case No. 1286 of 1995 (Annexure-7) purporting to be one under Section 348 of the Code and the dismissal of the appeal by the Sessions Judge, Cuttack, under Section 341 of the Code preferred by the petitioner in the Court of Sessions Judge, Cuttack, in Criminal Appeal No. 163/96 vide the impugned judgment dated 6-12-96. ( 2 ) PETITIONER is one of the accused persons in C. A. Case No. 1286 of 1995 and the offences alleged are under Sections 498-A, 406/34, I. P. C. , and Section 4 of the Dowry Prohibition Act. In the Court of S. D. J. M. , he filed an application praying for action under Section 340 of the Code against the opposite parties 2 to 4 on the ground that at the time of hearing of his bail application filed and moved in the High Court under Section 418 of the Code, vide Criminal Misc. Case No. 1529 of 1998, while opposing that prayer for anticipatory bail, prosecution relied upon a letter and a postal envelope relating to ill-treatment and cruelty meted out to the opposite party No. 2. Petitioner contends that such letter and the envelope are fabricated one and used in a Judicial Proceeding and, therefore, action under Section 195 (1) (b) of the Code be taken against the opposite parties 2 to 4. It is also stated by the petitioner that the said document was seized by the Investigating Officer on being produced by the opposite parties 2 to 4. ( 3 ) LEARNED S. D. J. M. rejected the petition as premature on the ground that trial of the case has not been taken-up and genuineness or fakeness of the said document should not be decided at this pre-trial stage, which would affect the trial of the case. He further observed that in course of the trial, if any material will be forthcoming justifying action as prayed for, then, the accused-petitioner is at liberty to file such petition for proper action in accordance with law. He further observed that in course of the trial, if any material will be forthcoming justifying action as prayed for, then, the accused-petitioner is at liberty to file such petition for proper action in accordance with law. Being aggrieved by that order, petitioner preferred Criminal Appeal No. 163/96 in accordance with the provision in Section 341 of the Code and at the stage of admission, learned Sessions Judge dismissed the appeal concurring with the view of the S. D. J. M. Hence petitioner has approached this Court under Section 482 of the Code. ( 4 ) LEARNED counsel for the petitioner argued that when prosecution has relied upon the letter while opposing to the bail application and that document having been seized by the Police, has been relied upon in the charge-sheet and has also been produced in the Court, notwithstanding non-commencement of the trial, action under Section 340 of the Code can be taken by the Magistrate in view of the language used therein and, therefore, the ground on which the petition has been rejected by the Courts below is legally not sustainable. ( 5 ) LEARNED counsel for the opposite party on the other hand argued that the concerned document was produced before the Investigating Officer and thereafter it was seized. None of the opposite party Nos. 2 to 4 produced the document in the High Court or the Court of S. D. J. M. and it is the Investigating Agency who produced the same. He further argued that allegation of forgery though made by the petitioner is a matter to be proved to the satisfaction of the Court and thereafter, if the Court will be satisfied about production of a false and fabricated evidence, then it may take action either suo motu or on the application of the petitioner. According to him, as rightly stated in the impugned judgments, that stage has not yet come and, therefore, there is nothing to interfere with the impugned judgments. Accordingly, he prayed to reject the petition under Section 482 of the Code. ( 6 ) BEFORE proceeding with the aforesaid contentions, for better appreciation, provisions in Sections 195 and 348 of the Code are quoted below :-"195. Accordingly, he prayed to reject the petition under Section 482 of the Code. ( 6 ) BEFORE proceeding with the aforesaid contentions, for better appreciation, provisions in Sections 195 and 348 of the Code are quoted below :-"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 1888 (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 195 (both inclusive), and 220, when such offfence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 453, 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 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. (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, on further proceedings shall be taken on the complaint : Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In Clause (b) of sub-section (1), the term "court means a Civil, Revenue or Criminla Court, and include a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purpose of this section. (3) In Clause (b) of sub-section (1), the term "court means a Civil, Revenue or Criminla Court, and include a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purpose of this section. (4) For the purposes of Clause (b) of sub-ourt, 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 be subordinate; (b) 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. ""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. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither oath a complaint under sub-section (1) in respect of that offence nor rejected on application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the Presiding Officer of the Court. (4) In this section, "court" has the same meaning as in Section 195. "on a bare reading of the provisions in Section 340, as quoted above, it is clear that if offences as enumerated in Section 195 (1) (b), in the opinion of the Court, have been committed in or in relation to a proceeding in that Court in respect of a document produced or given in a proceeding in that Court, then, after such preliminary inquiry as will be deemed fit, such Court shall record a finding to that effect, make a complaint thereof in writing, send it to the Magistrate of the First Class having jurisdiction to try the case and take sufficient surety for the appearance of the accused before such Magistrate and while doing so in case of non-bailable offence, if the Court thinks it necessary so to do, send the accused in custody to such Magistrate having jurisdiction to try the case and also bind over any person to comply and give evidence before such Magistrate. That being the provision of law, the contention of the petitioner that mere production of a document before the Investigating Officer and having some prima facie proof regarding chance of fabrications of that document it may not be sufficient to enable the Magistrate like the S. D. J. M. , in this case, to form an opinion to presume such forgery and to embark upon an inquiry under Section 340. Besides that as rightly pointed out by learned counsel for the opposite party in the case of Nirmaljit Singh Moon v. State of West Bengal, AIR 1972 SC 2639 , while considering a similar question and interpreting the term 'produced', the Apex Court has held that production of a document by the complainant before the investigating agency, at the stage of investigation, cannot be regarded as 'production of a document in a proceeding' so as to attract the provision of Section 195 (1) (c) (corresponding to Section 195 (1) (b), Clause (ii) of the old Code ). It is further held by the Apex Court that if at all there is allegation of production of a forged document in a proceeding before the High Court, a complaint in that respect of that offence by or at the instance of the High Court would be taken cognizance of by the Magistrate. It is needless to point out that in that respect High Court was not moved. So that as it may, as it appears from the factual aspect, the position of law and the ratio propounded by the Apex Court, if the complainant produced the documents before the investigating agency and as yet it has not been tendered in evidence, then the provision of Section 195 (1) (b) or for that matter the provision in Section 340 of the Code is not attracted at this stage. ( 7 ) UNDER the given facts and circumstances and the position of law, there is nothing to interfere with the impugned judgments by invoking the inherent power under Section 482 of the Code. The Criminal Misc. case is thus, dismissed. Petition dismissed.