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2000 DIGILAW 1304 (PAT)

Sushila Kumari v. Ram Naresh Singh

2000-12-08

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This application is directed against the judgment and order dated 27.9.1997 recorded by Additional District and Sessions Judge, 10th Court, Patna, in Criminal Appeal no. 187 of 1994 under which the judgment and sentences passed by Sri Arvind Madhav, Judicial Magistrate, first class, Patna, in Complaint Case no. 324(C) of 1991 were confirmed and the appeal was dismissed. 2. Petitioner, Sushila Kumari, after trial, was convicted under section 466 of the Indian Penal Code (hereinafter referred to as the Code) and was sentenced to undergo rigorous imprisonment for a period of three months. 3. The case of the complainant/ opposite party, Ram Naresh Singh, was that he was posted as Assistant Teacher in a school in which the petitioner was headmistress. On 11.3.1988 the petitioner issued order that on 12.3.1988 the School (Prathmik Vidyalaya, Rupaspur) would function from 6.30 A.M. to 11.30 A.M. as on that day the teachers had to bring their pay from the Bank which was complied with by the complainant. It was further alleged that on 9.4.1990 the petitioner in the attendance register of the school by overwriting over the time of arrival of the complainant in the school on 12.3.1988 made that to be 10.30 A.M. though the complainant had noted 6.30 A.M. which she did to harm the complainant in a case. It was further stated that the complainant came to know of the aforesaid forgery when the petitioner went to depose in the case (on 9,4.1990 in which the complainant was an accused). The complaint was filed for punishing her under section 420 of the Code. 4. It will appear that charge under section 466 of the Code was subsequently framed by order dated 23.8.1994. 5. Learned counsel for the petitioner has submitted two points for consideration of this Court (i) That on 9.4.1990 on which date as per allegation and as per charge she had committed forgery in the attendance register, the said register even from before, as per evidence, was in the custody of that court and if while the record was under custody of the court and some forgery was committed on that document, by virtue of section 195 of the Code of Criminal Procedure (Cr. P.C. in short) the complainant was not entitled to file complaint and no cognizance could have been taken except on a complaint filed by the court concerned, and (ii) that entire case of the prosecution case was based upon Exhibit-3, which was certified copy of the evidence of the petitioner dated 9.4.1990 in the court of the Additional District and Sessions Judge at Patna in Sessions Trial no. 321 of 1989 in which she had said that the overwriting was done by her, but no question whatsoever on such admission was asked of the petitioner by the learned trial court while recording her statement under section 313 of Cr. PC. hence that portion of evidence should be excluded from consideration and if that evidence is not considered, the case of the prosecution falls apart. 6. In so far as the first point is concerned, the learned counsel for opposite party has based his arguments upon two decisions, first in the case of Sachchidanand Singh and anr. V/s. State of Bihar and anr.; (1998) 2 Supreme Court Cases 493, and another in the case of Dr. Satrughan Ram V/s. State of Bihar and anr. 1996 (1) Patna Law Journal Report 531. However, from reading of the aforesaid judgments it will appear that bar under section 195 of Cr. P.C. against taking of cognizance is operable only if the offence was committed in respect of a document produced or given in evidence in a proceeding in a court but that bar is not applicable where the said offence was committed before the document was not even produced in the court. In the case of Sachchidanand Singh (supra) a complaint was filed alleging offences under sections 468, 469 and 471 of the Code on the fact that the appellants had forged the certified copy of Jamaband- rert roll and produced that in the court of Executive Magistrate, which was then dealing with a proceeding under section 145 of the Cr. P.C. In that case the Chief Judicial Magistrate had taken cognizance of the offence on submission of charge sheet. Their Lordships held that the bar was not applicable to a case where forgery of document was committed before the document was produced in the court. In the case of Dr. Satrughan Ram (supra) the documents were said to have been forged in collusion with the Revenue Karamchari. Their Lordships held that the bar was not applicable to a case where forgery of document was committed before the document was produced in the court. In the case of Dr. Satrughan Ram (supra) the documents were said to have been forged in collusion with the Revenue Karamchari. It was held that since the offence alleged had been committed before the start of the proceeding before the Deputy Commissioner, Land Reforms in a Jamabandi cancellation case, there was no bar in taking cognizance by the Magistrate in respect of such offences. 7. Under section 195 (b)(ii) no court could take cognizance of any offence described in section 463 (forgery) or punishable under section 471 or section 436 of the 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, except on the complaint in writing of that court, or of some other court to which that court is subordinate. 8. It will appear that the complaint petition specifically places the date of the commission of offences to be on 9.4.1990. The charge framed against this petitioner under section 466 of the Code also specifically mentions the date of occurrence to be 9.4.1990. 9. Sri Tara Kant Jha, learned counsel for the petitioner, has argued that admittedly on that date of alleged occurrence the register concerned was in the custody of the court as in Exhibit- 3 itself it was mentioned in the evidence of petitioner that the register was marked X for identification (from before), and since the clear allegation was that the offence was committed on that very day and charge also mentioned that, there was no escape from the conclusion that the alleged forgery was committed on a date on which the register was in custody of the court. From perusal of examination of the petitioner under section 313 of the Cr. P.C, on 31.8.1994. it will appear that the date of occurrence was mentioned by the court to be 9.4.1990. 10. Learned counsel for opposite party has stated that it could not be said, when the register before coming to the court was in the custody of the petitioner, as to on which date she had committed forgery and that the learned lower court had rightly commented that the forgery might have been committed before 9.4.1990. 10. Learned counsel for opposite party has stated that it could not be said, when the register before coming to the court was in the custody of the petitioner, as to on which date she had committed forgery and that the learned lower court had rightly commented that the forgery might have been committed before 9.4.1990. However, the court cannot make out a new case and has to base its findings on the facts as alleged. When there is clear case of the complainant that forgery was committed on a particular date and charge also mentioned that date, then the prosecution cannot be allowed to resile from that position and suggest a new date of the occurrence. 11. In view of the aforesaid, the decisions relied upon by the learned counsel for opposite party cannot help the prosecution. 12. In view of the discussion as above I find and hold that cognizance of the offence was barred under provision of section 195 of Cr. P.C. 13. In so far as other argument of Sri Jha is concerned, learned counsel for opposite party has submitted that the petitioner/accused was examined under section 313 on two days, on 19.3.1994 and on 31.8.1994. Learned counsel has submitted that in the subsequent examination under section 313 of Cr. P.C. the question asked would cover even the admission relied upon by the prosecution as per evidence of the petitioner in Exhibit-3 . On this date the English translation of the question asked and answer given would be as follows : "Question : This fact has come that on 9.4.1990 when you appeared before the Additional District and Sessions Judge, Patna, in Sessions Trial no. 321 of 1989 as defence witness, then you struck off 6.30 mentioned for arrival in the attendance register and made that 10.30 and you did that for implicating (the complainant)?" Reply was in negative. 14 The aforesaid question appears not to have been framed properly by the learned trial court in so far as admission part of the evidence is concerned as the question though mentions facts of the charge framed, it is absolute silent on the circumstance of her alleged admission in Exhibit-3 thereby denying accused opportunity to explain what may appear to be her admission. 15. Section 313 of Cr. P.C. runs as follows : 313. 15. Section 313 of Cr. P.C. runs as follows : 313. Power to examine the accused.(1) In every enquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such question to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case : The purpose of examiantion of an accused under section 313 cannot be overemphasized. This provision gives an opportunity to the accused to explain any circumstance that might have appeared in the evidence against him, which gives a valuable right to the accused providing him that opportunity. This is also because sub- section (4) of section 313 of Cr. P.C. provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed. 16. This, therefore, also bestows upon the trial court a responsibility to put specific questions on each and every important circumstance that might have come in evidence so that the accused may have an opportunity to explain that. If instead of doing that a casual question is framed which may tend to encompass all the circumstances that might have come in the evidence for proving the offence, that would be against the spirit of section 313 of Cr. P.C. and, therefore, the important circumstance which the accused has not been called upon to explain by framing specific question on that, cannot be taken into consideration against the accused. For this a decision of the Supreme Court in the case of Sharad Virdhi Chand V/s. State of Maharashtra; A.I.R. 1984 Supreme Court 1622, and another decision of this court in the case of Fateh Mian V/s. State of Bihar; 1998 (2) Patna Law Journal Report 421, may be seen. 17. The alleged admission made in Exhibit-3 was the most important circumstance relied upon by the prosecution for establishing that the aforesaid overwriting was done by the petitioner obviously with a purpose to demolish the plea of alibi taken by the complainant in the aforesaid sessions trial. 17. The alleged admission made in Exhibit-3 was the most important circumstance relied upon by the prosecution for establishing that the aforesaid overwriting was done by the petitioner obviously with a purpose to demolish the plea of alibi taken by the complainant in the aforesaid sessions trial. From Exhibit B, which is certified copy of the judgment in the aforesaid sessions case, it will appear that the complainant was found guilty, and was convicted, of offence punishable under section 302 of the Code and under section 27 of the Arms Act. 18. It has been pointed out that when such vague and general question under section 313 of the Cr. P.C. was asked of the petitioner, as reproduced above, she had denied the allegation. As a matter of fact, her entire defence was denial of the charge. In such circumstance, it was essential for the learned trial court to put specific question about her alleged admission made in course of her evidence in the sessions trial, which has not been done. 19. That being so, that particular piece of evidence cannot be taken into consideration against the petitioner/accused for proving the prosecution case against her. 20. In view of the aforesaid, this application is allowed and the conviction and the sentence are hereby set aside. The petitioner is acquitted of the charge, released from the liabilities of her bailbond and is set at liberty.