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2002 DIGILAW 136 (PNJ)

Umed Singh Pawar v. Krishan Kumar Sharma

2002-01-31

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. The facts for the disposal of this petition are that Ram Singh obtained an award from the Labour Court for the recovery of Rs. 4135.66 from the petitioners. The Labour Court also ordered the reinstatement of the father of respondent. Ram Singh initiated execution proceedings for the recovery of Rs. 4135.66. It is alleged that petitioner Umed Singh Pawar fabricated the payment voucher and produced the same before the executing court to show that the amount has been paid to Ram Singh, but according to Ram Singh that document was forged by the petitioner. Ram Singh filed criminal complaint against the petitioner. The said complaint was dismissed on 15.10.1988. Against that order, Ram Singh preferred a revision petition. The same was accepted vide order dated 4.1.1989 passed by the learned Sessions Judge and it was directed that learned Sub Divisional Judicial Magistrate to proceed with the case and decide it on merits. On receipt of the case, the learned Chief Judicial Magistrate charge-sheeted the petitioner under Sections 467/471/34 IPC. Aggrieved by the above-said orders, the present petition has been filed by the petitioners praying for quashing the orders dated 4.1.1989 passed by learned Sessions Judge and learned Sub Divisional Judicial Magistrate dated 11.12.1993 vide which charge against the accused-petitioners was ordered to be framed. 2. Mr. Kapil Aggarwal, learned counsel for the respondent raised preliminary objection that this petition is not maintainable as the petitioners have not challenged the order passed by the learned Sessions Judge vide which the order of learned Sub Divisional Judicial Magistrate was set aside and case was remanded back and the learned Sub Divisional Judicial Magistrate has charge- sheeted the petitioner. Against that order, the petitioner has an alternative remedy under the Code i.e. for filing a revision petition. He further submitted that petitioners instead of availing that remedy has preferred this petition under Section 482 Cr.P.C. He also submitted that when an alternative remedy is available, then the petition under Section 482 Cr.P.C. is not maintainable. 3. On the other hand, Mr. H.S. Hooda, Senior Advocate appearing for the petitioners submitted that to secure the ends of the justice, when the Courts below over-look the provisions of law and to correct the error committed by the Courts below, a petition under Section 482 Cr.P.C. is maintainable. 3. On the other hand, Mr. H.S. Hooda, Senior Advocate appearing for the petitioners submitted that to secure the ends of the justice, when the Courts below over-look the provisions of law and to correct the error committed by the Courts below, a petition under Section 482 Cr.P.C. is maintainable. He further submitted that there is no limitation prescribed for filing a petition under Section 482 Cr.P.C. He also submitted that the petitioner is being vexed twice for the same offence and his fact has been over-looked by the learned Sessions Judge. He pointed out that the Labour Court in execution proceedings has imposed a fine of Rs. 1000/- upon the petitioners for not making the payment to Ram Singh, father of the respondent. He contended that for the same offence, petitioner is now being prosecuted for the offence under Section 467/468 IPC. He further submitted that complaint filed by Ram Singh is not maintainable in view to Section 195(1)(b)(ii) Cr.P.C. He contended that it is the Court which can lodge the report. He submitted that the allegation against the petitioner is that he fabricated the payment voucher and produced the same in evidence during the execution proceedings. He submitted that without the complaint, no Court can take cognizance of the offence as prescribed under the Code. He further submitted that the learned Sessions Judge has over-looked the provisions of Section 195(1)(b)(ii) Cr.P.C. and has remanded the case to Sub Divisional Judicial Magistrate to hold further enquiry. 4. After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that this petition has no merit and deserves to be dismissed. 5. The learned Sessions Judge vide order dated 4.1.1989 set aside the order passed by the learned Sub Divisional Judicial Magistrate and ordered that the learned Sub Divisional Judicial Magistrate to decide the complaint on merit and to hold an enquiry according to law. Petitioner has not challenged the said order for more than 5 years. 6. No doubt for filing a petition under Section 482 Cr.P.C. no limitation has been prescribed but it does not mean that a party can file a petition under Section 482 Cr.P.C. whenever it likes. However, a petition should have been filed within a reasonable period. Petitioner has not challenged the said order for more than 5 years. 6. No doubt for filing a petition under Section 482 Cr.P.C. no limitation has been prescribed but it does not mean that a party can file a petition under Section 482 Cr.P.C. whenever it likes. However, a petition should have been filed within a reasonable period. The period of 90 days which is at par with a revision should be treated as reasonable and if the petition under Section 482 Cr.P.C. is filed beyond the period of 90 days, the petitioners should explain the cause of delay. In the instant case, there is no explanation why order of learned Sessions Judge has not been challenged within the reasonable time. 7. The order passed by learned Sessions Judge dated 4.1.1998 was a revisable order as well as the order dated 11.12.1993 passed by the Sub Divisional Judicial Magistrate vide which the petitioners have been charge-sheeted under Sections 467/468 IPC was a revisable order. When there is specific provisions under the Code of Criminal Procedure i.e. Section 397 and 401 Cr.P.C. under which a revision lies, then petition under Section 482 Cr.P.C. is not maintainable. In this regard, reliance can be placed on Balabhadra Dash and another v. State of Orissa and others, 1991 Crl.L.J. 2457 in which his Lordship has held as under :- "Inherent power is wide in nature and S. 482 in Cr.P.C. having been made to secure ends of justice or to prevent abuse of the process of Court, such power is to be exercised with great restraint. Wider would be the power, greater should be the restraint. Ordinarily, trial of an accused in a criminal prosecution is to be concluded under the provisions of Criminal Procedure Code and High Court would be reluctant to conclude the same at an interim stage. Therefore, prayer for quashing charge or taking cognizance ought not to be entertained in a routine manner and unless High Court is satisfied that there is abuse of process of Court or ends of justice demands it, such prayer ought not to be entertained. Even if such prayers are entertained, all endeavours should be made to examine if the abuse of powers of Court can be eradicated without bringing the proceeding to an end in the midway. Even if such prayers are entertained, all endeavours should be made to examine if the abuse of powers of Court can be eradicated without bringing the proceeding to an end in the midway. Where accused would be put to such inconvenient position that subsequent examination of these questions would materially affect him which would be irreparable in nature, High Court can for reasons to be recorded in that regard, examine the materials to interfere with the continuance of trial. Therefore, where all the accused persons had an opportunity to advance submissions before the Magistrate that materials on record do not call for framing of charge against them, High Court declined exercise of inherent powers for quashing cognizance. In subordinate authority normally higher authority should not exercise its powers to give same relief." 8. In Mohan and another v. State, Opposite parties, 1974 Crl.L.J. 1407 it has been held as under :- "The inherent power of the High Court under that provision, to my mind, cannot be pressed in aid for the purposes of indirectly undoing or modifying an order which is appealable or revisable and has become final because no appeal or revision was filed against it or having been filed were dismissed thus giving finality to the same. The order of the learned Magistrate dated 17th January, 1969 and the appellate order therefrom are not in challenge in these proceedings." 9. The submissions made by learned counsel for the petitioners that complaint is not maintainable in view of Section 195(1)(b)(ii) Cr.P.C. is without any substance. 10. When a document is forged outside the precincts of the Court and produced in evidence in Court, holding of an enquiry under Section 340 Cr.P.C. is not necessary nor it is the requirement of law that complaint in that case is to be filed only by the Court. This proposition has been settled by the Apex Court in Nagadev Bapuji Mahajan (dead) and another v. State of Maharashtra, AIR 1994(2) Crl. Law Journal 1389, Sachida Nand Singh and others v. State of Bihar and another, 1998(1) RCR(Crl.) 823 (SC) : AIR 1998 Supreme Court 1121. In paras 12 and 24 of the judgment rendered in Sachida Nands case (supra) the Apex Court has held as under :- "12. Law Journal 1389, Sachida Nand Singh and others v. State of Bihar and another, 1998(1) RCR(Crl.) 823 (SC) : AIR 1998 Supreme Court 1121. In paras 12 and 24 of the judgment rendered in Sachida Nands case (supra) the Apex Court has held as under :- "12. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that court. In other words, the offence should have been committed during the time when the document was in custodia legis. "24. The sequitur of the above discussion is that the bar contained in S. 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the documents was committed before the document was produced in a Court. Accordingly, we dismiss this appeal". 11. In the instant case, the document has not been fabricated in the Court. It was fabricated outside the Court and produced in evidence. Therefore, a private complaint is not barred as per the law laid down by this Court in Madan Lal Sharma v. Punjab & Haryana High Court, 1999(2) RCR(Criminal) 223. 12. For the reasons recorded above, there is no merit in this petition. Hence, the same is dismissed.