Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 454 (PNJ)

Rajinder Parkash v. Mal Singh

2001-04-24

AMAR DUTT

body2001
JudgmentJudgment Amar Dutt, J. 1. Rajinder Parkash and another through this petition seek to challenge the order dated 17.10.1990 passed by Additional Sessions Judge, Barnala by which the directions issued by the Sub Judge-cum-Judicial Magistrate Ist Class, Barnala for the filing of a complaint under Sections 467, 468, 473, 193, 476 and 120-B IPC against the respondents were set aside. 2. The facts necessitating the filing of an application under Section 340 Cr.PC against the respondents are that one Naina Devi wife of Laxmi Narain of Barnala was the owner of the land measuring 17 kanals comprised in Khasra Nos. 60//6/7-18, 15/7-15, 16/1-7 situated in village Sanghero as per the copy of the jamabandi for the year 1976-77. Naina Devi had executed a registered Will in favour of her sons Rajinder Parkash, Pawan Kumar and Surinder Parkash on 19.10.1978. She died on 27.5.1981 and after her death, her sons became owners of the land in dispute. The respondents who have no connection with Naina Devi had, in order to grab the land owned and belonging to her, fabricated a Will in favour of the Mal Singh, respondent No. 1 claiming that the deceased was his foster sister (Dharam Behan). The Will was attested by respondents No. 2 to 4. 3. On 9.10.1981, claiming that he had become owner on the basis of the Will dated 15.4.1981, Mal Singh filed a suit in the court of Sub Judge 1st Class, Barnala against the Surinder Parkash and Laxmi Narain. The Will was produced by Mal Singh and the respondents made statements to prove the same. The suit was dismissed on 8.3.1984 after holding that the Will Ex.P.1 was a forged document. Mal Singh filed an appeal which was dismissed on 3.8.1984 and the order of the trial Court regarding Ex.P.1 being forged document was upheld. This dismissal occasioned the filing of an application under Section 340 Cr.PC before the Sub Judge-cum-Judicial Magistrate Ist Class, Barnala for filing of a complaint against the respondents. The learned trial Court accepted the application and passed the orders directing that a complaint be drafted and presented before the Chief Judicial Magistrate, Sangrur for entrustment to a competent court. The respondents went up in appeal. The learned Addl. The learned trial Court accepted the application and passed the orders directing that a complaint be drafted and presented before the Chief Judicial Magistrate, Sangrur for entrustment to a competent court. The respondents went up in appeal. The learned Addl. Sessions Judge, Barnala, accepted the appeal holding that Section 195(1)(b)(ii) of the Cr.PC had no application to the facts of the case as "It is open to little doubt that the Will which was found to the have been forged vide the civil Courts judgment dated March 8, 1988 (ibid) had been forged prior to the institution of the Civil Suit No. 472 (ibid) in the court at Barnala". Hence, this revision. 4. I have heard Mr. Munish Jolly, Advocate, appearing for the petitioners and Mr. H.S. Gill, Sr. Advocate assisted by Mr. G.S. Gill, Advocate for the respondent. 5. On behalf of the petitioners, interference with the view taken by the learned Addl. Sessions Judge, Barnala is sought on the ground that while interfering with the view taken by the learned Sub Judge-cum-Judicial Magistrate, Ist Class, Barnala, the learned Addl. Sessions Judge, Barnala relied upon the observations in Harbans Singh and Ors. v. State of Punjab, 1986(2) RCR 481 which judgment has been considered by a larger Bench of the Five Judges in Madan Lal Sharma v. Punjab and Haryana High Court, 1999(2) RCR(Criminal) 223 in which it has been held that the provisions of Section 195(1)(b)(ii) Cr.P.C. cannot be attracted even to the cases wherein a document is forged by the accused and thereafter produced in court. In view of this it was submitted that the judgment of the learned Addl. Sessions Judge, Barnala cannot be sustained and has to be set aside. 6. On behalf of the respondents, reliance is placed mainly on the decision in Harbans Singhs case (supra) and the fact that the aforesaid judgment has been upheld in Sachida Nand Singh and anr. v. State of Bihar and anr., JT 1998(1) SCC 370 : 1998(1) RCR(Crl.) 823 (SC) for supporting the view taken by the learned Additional Sessions Judge, Barnala to the effect that as the forgery of the Will, if any, had been committed prior to its presentation in Court, the bar contained in Section 195(2) (1)(b)(ii) Cr.P.C. would not be attracted and, therefore, the Civil Court had no jurisdiction to direct the filing of the complaint. 7. 7. I have carefully considered the arguments and have perused the records. 8. The facts in this case are not in controversy. Respondent No. 1 in Civil Suit No. 422 dated 9.10.1981 filed by him had relied upon a Will, that was stated to have been executed by Naina Devi, bequeathing her entire property in favour of her sons Rajinder Parkash, Pawan Kumar, Surinder Parkash. This will was found to be forged and the view taken by the Sub Judge Ist Class, Barnala was upheld. An application under Section 340 Cr.PC was moved before the Sub Judge-cum-Judicial Magistrate Ist Class, Barnala for initiating the inquiry for taking action against the respondents. The learned Addl. District Judge, Barnala had set aside the directions issued by the Sub Judge-cum-Judicial Magistrate Ist Class, Barnala, for prosecuting the respondents on the ground that the Will, which was found to be forged had been forged prior to the institution of the suit. He had relied upon the observations contained in Harbans Singhs case (supra). The ratio of the decision of the Full Bench came up for consideration in Madan Lal Sharmas case (supra) and it was held therein that when a document was forged outside the court and thereafter produced in Court, the holding of an inquiry as envisaged under Section 340 Cr.PC is not a must for institution of proceedings against the accused. The Full Bench had taken into consideration the judgment of the Supreme Court in Sachida Nand Singhs case (supra), before observing as under :- "From the discussion made above, we hold that, as mentioned above, neither the plain language employed in Section 195(1)(b)(ii) nor the purpose for which the said section was enacted by the Legislature, creates any bar for a Court to take cognizance and launch prosecution of a person who might have committed forgery of a document or of the offences as envisaged under Section 195(1)(b)(ii) of the Code. We further hold that the while taking cognizance of the offences of the type mentioned in Section 195(1)(b)(ii), i.e. the documents that were forged in the precincts of the Court and not outside the precincts of the Court and then produced, and holding an enquiry as envisaged under Section 340, the Court has to form an opinion that it is expedient in the interest of justice that an enquiry should be made. The forgery of a document has to be such that may affect the administration of justice. If the parameters contained in Section 340 are in existence, there will be no bar for the Court to take cognizance of the offences as mentioned in Section 195(1)(b)(ii) and launch prosecution against the accused. We further hold that there is no bar placed upon the court, even remotely to take cognizance of the offences that are spelled out in Section 195(1)(b)(ii) of the Code if the document has been forged outside the presidents of the Court and then produced in the Court. It may be desirable in such cases to still see as to whether prosecuting an offender would be expedient for the administration of justice. But it is not sine qua non for the initiation of proceedings against an accused that all parameters mentioned in Section 340 must be strictly meted. We further hold that while holding an inquiry as envisaged under section 340 of the Code, it is not necessary for the Court to observe in writing that it is of the opinion that it is expedient in the interest of the justice that the enquiry should be made. Once the source of power to initiate the enquiry is in existence, non-mention of the Section empowering the Court or recording in writing the reasons forming an opinion as shall, shall not be essential." 9. There is nothing in the decision of the Full Bench that would debar the court before whom a document forged outside the precincts of the Court had been produced from initiating the proceedings against the offender and therefore, what had been done by the learned trial Court is not hit by any provision of law, even though the holding of such a preliminary inquiry may not be necessary. 10. For the reasons recorded above, the order dated 17.10.1999 passed by the learned Addl. Sessions Judge, Barnala is set aside and the order dated 29.9.1986 passed by the learned Sub Judge-cum-Judicial Magistrate Ist Class, Barnala directing the drafting of a complaint and sending the same to the Chief Judicial Magistrate, Sangrur for entrustment to some competent Court is restored. Let the needful be done within 2 months from the receipt of the copy of this order. Order accordingly.