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2000 DIGILAW 172 (CAL)

Baneshwar Das Poddar v. State of West Bengal

2000-04-07

R.K.Mazumdar

body2000
Judgment R.K. Mazumder, J. The instant criminal revisional application under section 401 read with section 482 of the Code of Criminal Procedure is at the instance of Shri Baneshwar Das Poddar, accused-petitioner and this is directed against the impugned order passed by learned SDJM, Jangipur, Murshidabad on 14.8.97 in G.R. Case No. 406/95 (T.R. 446/97) arising out of Sagar dig hi P.S. Case No. 76/95 dated 17.7.95 under sections 465/467/471/474/420/109 IPC. 2. The case of the accused-petitioner was in brief that the complainant -O.P. No.2 filed a written complaint before the Court of learned SDJM, Jangipur against the accused-petitioner and two others making several allegations against them and the said written complaint was treated as FIR under section 156(3) of the Code of Criminal Procedure by the Magistrate concerned. In the said written complaint it was the case of the O.P. No.2 that the said O.P. No.2, his mother and brothers were the owners of land measuring 28.66 acres under Khatian No. 94, plot Nos. 2 and 3 of Mouza Surjapur, P.S. Sagardighi, Murshidabad. To be specific, the nature of the land was tank having an area of 15.39 acres and the adjoining land having an area of 13.27 acres. Since the petitioner was familiar with O.P. No.2 and his other family members, a registered deed of lease was executed by the said owners of the land and tank in favour of the petitioner to be effective from 17th December, 1970, on condition that the petitioner will look after the lease-hold property for a period of 25 years and pay annual rent at the rate of Rs.999/- to the owners during the said period. Time flew by and the period of lease for 25 years came to an end. But unfortunately the petitioner did not hand over the lease-hold property to O.P. No.2 and other owners. It has also been alleged in the said written complaint that the petitioner manufactured a false registered Ekrarnama in connivance with others in respect of the said property, and filed a case under section 144 of the Code of Criminal Procedure before the court of learned Sub-Divisional Executive Magistrate, Jangipur annexing a xerox copy of the said false Ekrarnama and prayed for a restraint order so that O.P. No.2 and his family members cannot get back the tank and the land in question. It has also been alleged in the said written complaint that since the Ekrarnama was a false one, the O.P. No.2 and other owners had no other alternative but to file the present case of cheating, forgery, etc. against the petitioner and others before the court of learned SDJM, Jangipur. The police made investigation in the said matter and on completion of the same submitted a Charge-Sheet on 19.7.97 against the petitioner and others under sections 465/467/471/474/420/109 IPC. In the said case being G.R. Case No. 406/95, although it was pointed out by the petitioner that since no complaint in writing was lodged by the court concerned regarding the' alleged forged Ekrarnama, learned SDJM, Jangipur was not competent to take cognizance of the offences in view of the legal bar provided for in section 195(1)(b)(ii) of the Code of Criminal Procedure. According to the petitioner, such a lawful plea was illegally rejected by learned SDJM, Jangipur, vide impugned order dated 14.8.97. By the said order as impugned, learned SDJM fixed a date for framing of charge against the petitioner and others. Hence the instant criminal revisional application for quashing the impugned order passed by learned SDJM, Jangipur on 14.8.97. 3. I have had the opportunity of hearing learned Counsels for all the parties in the matter at length. 4. The only question requiring consideration in this criminal revisional application was whether the impugned order passed by the learned SDJM, Jangipur, Murshidabad in G.R. Case No. 406 of 1995 on 14.8.97 was irregular, improper and illegal as alleged by the petitioner or not. 5. At the time of hearing learned Counsel for the petitioner vehemently submitted that the impugned order dated 14.8.97 passed by learned SDJM, Jangipur suffered from irregularity, impropriety and illegality inasmuch as the learned Magistrate concerned was not competent to take cognizance of the alleged offences and to fix a date for framing charge against his client when the provisions contained in section 195(1)(b)(ii) of the Code of Criminal Procedure stood as a legal bar in the matter. According to him the Magistrate concerned could not have taken cognizance of the alleged offences when there was no complaint in writing about the forged document by the concerned court of law. According to him the Magistrate concerned could not have taken cognizance of the alleged offences when there was no complaint in writing about the forged document by the concerned court of law. He further submitted that when there was no complaint in the matter from the court of law concerned, there was no justification on the part of the Magistrate concerned to reject his client's prayer for not taking cognizance of the alleged offences and to fix a date for framing of charge against the petitioner and others. He, therefore, urged upon this court for quashing the impugned order dated 14.8.97 passed by the learned SDJM, Jangipur in G.R. Case No. 406/95. 6. Learned Counsels for the Opposite Parties submitted, on the other hand, that since only a copy of the forged Ekrarnama was filed in the court of Sub-Divisional Executive Magistrate, Jangipur, there was no question of any legal bar in the matter of taking cognizance of the alleged offences under section 195(1)(b)(ii) of the Code. In that connection, he submitted that the question of filing a complaint in writing by the Executive Magistrate concerned would have arisen only when the original forged Ekrarnama was filed in the court. But this was not the case here as only a copy of the forged Ekrarnama was filed in the court concerned and not the original document. In that connection learned Counsel for the Opposite Parties drew my attention to a case viz. Sushil Kumar & Ors. vs. State of Haryana & Ors. as reported in AIR 1988 Supreme Court page 419 and submitted that in the said case also the question of production of the original document arose and it was held by the Supreme Court that since the document alleged to have been forged was not produced in the court, the provisions contained in section 195(1)(b)(ii) of the Code of Criminal Procedure had no applicability. 7. It may be mentioned that section 195 of the Code makes provisions in regard to prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. Needless to mention that the object of the said section is to protect persons from being vexatiously prosecuted on inadequate materials or on insufficient grounds. Needless to mention that the object of the said section is to protect persons from being vexatiously prosecuted on inadequate materials or on insufficient grounds. The provisions of this section is mandatory and under clause (b) (ii) of sub-section (1) of this section, the court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing by the court in respect of the document produced or given in evidence in proceeding in the Court. In other words, the provisions contained in section 195(1)(b)(ii) of the Code will not be attracted in the matter of taking cognizance unless and until there is a complaint in writing by the Court concerned about the alleged forged document produced in Court in a proceeding. In the instant case, it appears that only a copy of the alleged forged Ekrarnama was filed in the court of Sub-Divisional Executive Magistrate concerned but not the original document itself as alleged to be a forged one. It has been laid down by the Hon'ble Supreme Court in the case of Sushil Kumar & Ors. vs. State of Haryana & Ors. as reported in AIR 1988 Supreme Court 419 that when the accused produced only a copy of the document alleged to have been forged by him and not the original document in Court, the legal bar under section 195(1)(b)(ii) of the Code had no application. It appears that learned Court below rightly followed this decision of the Apex Court while passing the order dated 14.8.97 as impugned. 8. I find no irregularity, impropriety or illegality in the said order dated 14.8.97. I am, therefore, of the view that the instant criminal revisional application is liable to be dismissed and the same is hereby dismissed. 9. Order of stay passed by this court is hereby vacated. 10. Send down the lower court records immediately to the court concerned. 11. Learned SDJM, Jangipur, Murshidabad is hereby directed to go ahead with G.R. Case No. 406/95 in accordance with law. 12. There will be no order as to costs. 13. Deptt. is directed to communicate immediately this order to the lower court concerned. Application is dismissed.