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2003 DIGILAW 861 (RAJ)

Radha v. State of Rajasthan

2003-05-30

H.R.PANWAR

body2003
Honble PANWAR, J.–By this criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, petitioners seek quashing and setting-aside the order dated 30-1-2003 passed by the Additional Chief Judicial Magistrate, Sangaria, district Hanumangarh (for short, ``the trial Court hereinafter), whereby the trial court, on a private complaint by non-petitioner No. 2 Akshay Kumar, took cognizance of the offences under Sections 467, 468, 471, 420 and 120-B of the Indian Penal Code and issued process against the petitioners. The trial Court further directed amalgation of complaint case No. 97/2002 with criminal case No. 536/2002 registered on police challan papers against co-accused Vasu Deo, Bhagirath, Ram Chandra, Sunder Ram and Prem Chand arising out of FIR No. 34/2002. (2). Briefly stated, the facts, to the extent they are relevant and necessary for the decision of the instant revision petition, are that non-petitioner No. 2 Akshay Kumar lodged an FIR No. 34 dated 15-1-2002 with Police Station, Sangaria against the petitioners and co-accused who have been challaned by the police for the aforesaid offences, inter alia, alleging therein that his grand-mothers, viz. Mst. Ram Pyari and Mst. Baktawari, both widows of late (Shri) Mehar Chand died on 7-2-1990 and 17-2-2000 respectively. Accused Vasu Deo, Mst. Radha and Mst. Kiran are the son and daughters, respectively, of late Ram Pratap who was the maternal-uncle of father of the complainant. It was further alleged that in order to grab the agricultural land owned and recorded in the name of his both grand-mothers, these accused persons, in conspiracy with Sunder Ram, Bhagirath and Ram Chandra, fored a Will by making a false document of Will dishonestly and fraudulently with an intention to cause wrongful gain to accused Vasu Deo and the present petitioners Mst. Radha and Mst. Kiran and used the forged Will as a genuine document and with fraudulent intention, cheated the complainant. On this report, the police registered crime report No. 34/2002 and investigated the matter. During the investigation, the original forged Will was recovered from the possession of co-accused Vasu Deo and the register, in which the forged Will was recorded, was recovered from the possession of co-accused Prem Chand. On this report, the police registered crime report No. 34/2002 and investigated the matter. During the investigation, the original forged Will was recovered from the possession of co-accused Vasu Deo and the register, in which the forged Will was recorded, was recovered from the possession of co-accused Prem Chand. The speciman hand-writings and thumb impressions of the accused persons were sent to the Finger Print Bureau, Jaipur, statement of complainant and other witnesses were recorded under Section 161 Cr.P.C. and the report/opinion of the Finger Print Bureau, Jaipur was obtained. The Director, Finger Print Bureau opined that the disputed thumb impressions shown to be of Mst. Ram Pyari and Mst. Bhagwanti are similar and identical with the speciman left thumb impression of co-accused Sunder Ram. Thus, the thumb impressions of the executant of the Will were found to be forged by the accused. It is alleged that on the basis of the copy of the Will, accused Vasu Deo and the present petitioners jointly filed a suit for declaration and permanent injunction in the Court of Sub-Divisional Magistrate, Sangaria on 10-1-2002 and alongwith the said suit, a copy of the forged Will was also filed; however, the original Will was not produced before the Revenue Court alongwith the suit or subsequent thereto as is evident from the recovery/seizure memo of the original Will recovered from co-accused Vasu Deo on 5-2-2002 by the police. As no charge sheet was filed against the present petitioners inspite of there being sufficient material found on police investigation, complainant/non-petitioner No. 2 Akshay Kumar filed a private complaint on 30-9-2002 against the petitioners, on which the statement of the complainant was recorded under Section 200 Cr.P.C. on 22-1-2002. The learned trial Court, while taking cognizance, was of the opinion that there are sufficient grounds for proceeding against the petitioners and ordered issue of process against the petitioners by non-bailable warrant for the attendance of the accused-petitioners and directed to amalgamate the complaint case No. 97/2002 with criminal case No. 536/2002 arising out of FIR No. 34/2002. The impugned order passed by the learned trial court has been challenged by the present petitioners by this revision petition. (3). I have heard learned counsel for the petitioners, learned Public Prosecutor for the State and the learned counsel for the complainant. The impugned order passed by the learned trial court has been challenged by the present petitioners by this revision petition. (3). I have heard learned counsel for the petitioners, learned Public Prosecutor for the State and the learned counsel for the complainant. I have also carefully gone through the impugned order dated 30-1-2003, the record of the trial court in Criminal Case No. 536/2002 (arising out of FIR No. 34/2002) and the complaint case No. 97/2002; the FIR, the statement of the complainant and other witnesses recorded under Section 161 Cr.P.C., the record of the revenue suit filed by co-accused Vasu Deo and the present petitioners before the Court of S.D.M., Sangaria, the opinion of finger print bureau, the recovery memos of the original Will and the register etc. recovered from the accused persons and the statement of the complainant recorded under Section 200 Cr.P.C. (4). Learned counsel for the petitioners raised two-fold contentions before me; firstly, it was contended that on charge- sheet being filed by the police against accused Vasu Deo and three others, the trial court took cognizance of the offences against them and thereafter the trial court had no jurisdiction to add the present petitioners by exercising the power under Section 190 Cr.P.C. as the only stage to add the other accused is the stage as envisaged under Section 319 Cr.P.C. Sub-section (1) of Section 319 Cr.P.C. provides that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. It was further contended that the expression ``in the course of any inquiry into or trial of relates to the statement of prosecution witnesses recorded by the trial court during trial of the case. The second contention raised by the learned counsel for the petitioners is that there is a bar of Section 195 Cr.P.C. for taking cognizance for the offence relating to document given in evidence. The second contention raised by the learned counsel for the petitioners is that there is a bar of Section 195 Cr.P.C. for taking cognizance for the offence relating to document given in evidence. It was contended by him that Section 195(b)(ii) and (iii) bar the trial court to take cognizance of the offences described in Sections 463 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 of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii). (5). Learned Public Prosecutor and the learned counsel for complainant/non-petitioner No. 2 have supported the impugned order. It has been contended by the learned counsel for non- petitioner No. 2 that the bar of Section 195(b) (ii) and (iii) Cr.P.C. is not attracted in the instant case for the reason that the document alleged to have been forged and used as genuine, as also with regard to which the offence of forgery, using them as genuine, cheating and criminal conspiracy are concerned, is the Will which was forged by the accused named above and the Will was forged with fraudulent and dishonest intention of Vasu Deo and the present two petitioners for their wrongful gain and the said original Will had neither been forged during the proceedings in the court nor the same has been produced in evidence during the proceeding before the Sub-Divisional Magistrate and as such the provisions of Section 195(b) (ii) and (iii) Cr.P.C. are not attracted. (6). I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. (7). Learned counsel for the petitioners contended that the matter raising controversy under Section 195(b)(ii) and (iii) Cr.P.C. has been referred to a Larger Bench by the Honble Supreme Court in Balasubramaniam vs. State by SI Police, Tamil Nadu & Anr. (1). I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. (7). Learned counsel for the petitioners contended that the matter raising controversy under Section 195(b)(ii) and (iii) Cr.P.C. has been referred to a Larger Bench by the Honble Supreme Court in Balasubramaniam vs. State by SI Police, Tamil Nadu & Anr. (1). Learned counsel for non-petitioner No. 2 contended that the controversy raised in the instant case is not the same which had been referred to the Larger Bench by the Honble Supreme Court and in support of his contention, he has relied on the judgment of the Honble Apex Court in Sushil Kumar vs. State of Haryana (2), wherein Their Lordships of the Supreme Court held that since the document, alleged to have been forged, was not produced in the court, the provisions of Section 195 (1) (b) (ii) of the Code have no application. While passing that order, the Apex Court relied on the observation of the Privy Council in Shambhu Singh vs. King (3), wherein the Privy Council had observed that by production of a copy of the alleged forged document, it cannot be said that the document itself was produced or given in evidence. It was further held that this view affords a clear grammatical meaning of the word and is also supported by practical common sense. (8). In Budh Ram vs. State of Rajasthan (4), while considering the provisions of Section 195 (1) (c) of the Code of Criminal Procedure, the Apex Court observed as under:- ``It will be seen on a plain grammatical construction of this provision that a complaint by the court is required where the offence is of forging or of using as genuine any document which is known or believed to be a forged document when such document is produced or given in evidence in court. It is clear therefore that it is only when the forged document is produced in Court that a complaint by the court is required. Where, however, what is produced before the court is not the forged document itself, Section 195 (1) (c) will not apply on its terms. It is clear therefore that it is only when the forged document is produced in Court that a complaint by the court is required. Where, however, what is produced before the court is not the forged document itself, Section 195 (1) (c) will not apply on its terms. The reason for this, as stated by the Judicial Committee, `is the practical common sense of the matter, for the court before which a copy of a document is produced is not really in a position to express any opinion on the genuineness of the original. Therefore, even if the Assistant Settlement Officer is assumed to be a court within the meaning of Section 195 (1) (c) no complaint was necessary because the forged document itself was not produced before the Assistant Settlement Officer in this case but only a copy thereof. (9). In Balasubramaniams case (supra), the question involved was as to whether the bar under Section 195 (1)(b) (ii), Cr.P.C. would apply as against a private complaint for the offences under Sections 467 and 471, IPC even in respect of a document which was forged before it was filed in the court. In the case, in which the matter was referred to the Larger Bench by the Apex Court, the forgery was committed while the document was in the custody of the court. In the instant case, the document, of which forgery is allegedly committed, had never been produced before the court; on the contrary, after lodging of the FIR No. 34/2002 during investigation by the police, the said Will, alleged to have been forged, was recovered from the custody of co-accused Vasu Deo. (10). In Sushil Kumar vs. State of Haryana (supra), the point involved was that the partnership deed was forged by the accused therein in league of the officers of the Income Tax Department and thereafter a copy of the forged partnership was produced in the suit. The original partnership deed was not filed in the civil court and temporary injunction was obtained on the strength of its copy. The accused therein claimed protection of Section 195 (1)(b) (ii) Cr.P.C. The Honble Apex Court held that since the document, alleged to have been forged, was not produced in the court, therefore, the provisions of Section 195 (1) (b) (ii) Cr.P.C. have no application. The accused therein claimed protection of Section 195 (1)(b) (ii) Cr.P.C. The Honble Apex Court held that since the document, alleged to have been forged, was not produced in the court, therefore, the provisions of Section 195 (1) (b) (ii) Cr.P.C. have no application. The facts of the instant case are almost identical to the facts in Budha Rams case (supra), and Sushil Kumars case (supra) and, therefore, the instant case is fully covered by the ratio of the judgments of the Honble Supreme Court in Budha Ram and Sushil Kumars case (supra). (11). Learned counsel for the petitioners has relied on two Single Bench decisions of this Court reported in Rajesh Sidana (Smt.) vs. The State of Rajasthan (5), and Sukhdas & Ors. vs. State of Rajasthan (6). In Rajesh Sidanas case (supra), this Court held that once cognizance of an offence is taken by the magistrate, then for summoning some other accused, the stage is as envisaged in Section 319 Cr.P.C. after recording prosecution evidence. In Sukhdass case (supra), it was held that though in cases where police submitted the charge sheet against some of the accused persons, the Magistrate cannot proceed against the remaining accused persons. This bar cannot be applied to cases where the police submits a total negative report so as to deprive the Magistrate of power to take cognizance. Since the learned Magistrate has power of taking cognizance in case where police submitted a total negative final report, the magistrate cannot be held to have power to proceed against the remain accused persons where police submitted the charge sheet against some of the accused persons, by invoking the principle that qua left out accused persons, the police report tantamounts to giving of final negative report. Both these judgments are on different footing and do not come to the rescue of the petitioners; rather the judgment in Sukhdass case (supra) goes contrary to the contention raised by the learned counsel for the petitioners. (12). Learned counsel for the petitioners has also relied on the judgment of the Honble Supreme Court in Kishori Singh & Ors. vs. State of Haryana & Anr. (12). Learned counsel for the petitioners has also relied on the judgment of the Honble Supreme Court in Kishori Singh & Ors. vs. State of Haryana & Anr. (7), wherein the Apex Court held as under:- ``We have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the first information report as accused persons but not charge sheeted in the charge sheet that was filed by the police under Section 173 Cr.P.C. (13). In Kishori Singhs case (supra), the offences, of which cognizance was taken by the magistrate, were punishable under Sections 302/34, 324 and 448 IPC and Section 27 of the Arms Act. Obviously, in that case, the offences were triable exclusively by the Court of Sessions. (14). Chapter XIV of Criminal Procedure Code provides the conditions requisite for initiation of proceedings. Section 190 Cr.P.C. reads as under:- `` ``190. Cognizance of offences by Magistrate.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowers in this behalf under sub-section (2), may take cognizance of any (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try. (15). The provisions of Section 190(1) (b) Cr.P.C. came to be considered by three Judges Bench of the Honble Supreme Court in Raghubans Dubey vs. State of Bihar (8), wherein it was held that Section 190 (1) and Section 207 (a) Cr.P.C. refers back to Section 190 (1) (b); in other words, the police report mentioned in Section 207 (a) is the report mentioned in Section 190 (1) (b), and once cognizance is taken under Section 190 (1) (b), a proceeding is instituted within Section 207 (a). Their Lordships held as under:- ``In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. (16). In Raghubans Dubeys case (supra), Raghubans Dubey, the appellant therein, was one of fifteen persons mentioned as assailants in the FIR. The police investigated the case and filed charge sheet against some of the accused, however, the name of Raghubans Dubey was not included as an accused in the final report under Section 173 Cr.P.C. His name was, however, mentioned in Column No. 2 of the charge sheet under the heading ``not sent up. On 23-3-61, cognizance of offence under Section 302/149, IPC was taken. On 11-4-1961, an application on behalf of the person who lodged the FIR was filed requesting the Magistrate to summon Raghubans Dubey as an accused. Two witnesses were examined on 2-5-61. The Magistrate, after hearing, issued non-bailable warrant against Raghubans Dubey. The order of the Magistrate was challenged before the Sessions Judge, which did not find favour and the challenge was rejected. Against the order of the learned Sessions Judge, Raghubans Dubey moved the High Court by way of filing a revision petition. The High Court held that the Magistrate did not summon the appellant therein (Raghubans Dubey) only on those grounds which were before the Sub-Divisional Magistrate as the material before the Magistrate were not identical, the SDM had acted on the police report alone but the Magistrate took into consideration the evidence of two prosecution witnesses examined in the Court as well and accordingly the revision petition was rejected. On further special leave petition before the Honble Supreme Court, the Apex Court held that once cognizance of an offence is taken, it is the duty of the Magistrate to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of additional accused is part of proceedings initiated by taking cognizance of an offence. (17). This view of the Honble Supreme Court was reiterated in SWIL Ltd. vs. State of Delhi & Anr. (9), wherein the Apex Court held as under:- ``In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 Cr.P.C. would be applicable. Section 190 inter alia provides that `the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence. As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under Section 204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered alongwith charge sheet. Further, upon receipt of police report under Section 173 (2) Cr.P.C., the Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this state, there is no question of application of Section 319 Cr.P.C. (18). In SWIL Ltd.s case (supra), the complainant lodged FIR on 28-8-1997. On investigation, Raj Mohan Pillai, respondent therein, who was the Managing Director of another sister concern, was not joined as an accused in the charge sheet submitted by the police but his name was shown in Column No. 2 which is meant for the accused who are not sent for trial. On the basis of the charge sheet, the Metropolitan Magistrate, on 3-8-99, issued summons against all the accused shown in the FIR for the offences under Section 420, 406 and 120-B, IPC. The case was posted to next date on 20-12-99. On the basis of the charge sheet, the Metropolitan Magistrate, on 3-8-99, issued summons against all the accused shown in the FIR for the offences under Section 420, 406 and 120-B, IPC. The case was posted to next date on 20-12-99. On the next date of posting, the Magistrate issued summons to Raj Mohan Pillai, respondent No. 2 therein. That order of the Magistrate dated 20-12-99 was challenged before the High Court of Delhi. The Delhi High Court arrived at the conclusion that the trial court was totally unjustified in summoning Raj Mohan Pillai when his name was not shown in the column of accused persons in the charge sheet and the High Court held that such persons could be summoned by the Court under Section 319 Cr.P.C. only after the evidence has been recorded. That order of the High Court was challenged by special leave petition before the Apex Court and the Apex Court held as under:- ``There is no question of referring to the provisions of Section 319 Cr.P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2 (g) Cr.P.C. nor had the trial started. He was exercising his jurisdiction under Section 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190 Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge sheet. (19). This view was reiterated by the Honble Supreme Court in Rajinder Prasad vs. Rashid & Ors. (10), and the Apex Court, while considering the provisions of Sections 190 to 199 in Chapter XIV of the Code of Criminal Procedure, observed as under:- ``Under this section, a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit, after compliance with the provisions of Section 207 or Section 209, as the case may be, the case to the Court of Session and subject to the provisions of the Code, pass appropriate orders. This section refers back to Section 190, as is evident from the words `instituted on a police report used in Section 190 (1) (b) of the Code. (20). To sum up, (i) the bar upon taking cognizance for the offences under Sections 467, 468 and 471, IPC, envisaged under Section 195 (1) (b) (ii) Cr.P.C., have no application in the instant case as the document i.e. the alleged forged Will itself was not produced or put in evidence in the Revenue Court and only copy of the said document was produced and, therefore, complaint in writing by the Revenue Court, i.e. S.D.M., Sangaria, before whom the copy of the forged Will was filed, is not required in the law. The controversy raised in the instant revision stands concluded by the ratio of the judgments of the Honble Supreme Court in Budha Ram vs. State of Rajasthan (supra) and Sushil Kumar vs. State of Haryana (supra); (ii) Taking cognizance of the offences and issuing process against the accused persons, who were named in the FIR but on investigation no challan was filed against them and were not sent up for trial, on a complaint, the trial court issued process against the petitioners and arraigned them as accused alongwith those accused challaned by the police and in such a case, the learned Magistrate took the cognizance of offences under the provisions of Section 190(1)(b) Cr.P.C. The controversy raised in the instant revision petition also stands concluded by the ratio of the judgments of the Honble Supreme Court in the above-referred judgments in Raghubans Dubey, M/s. SWIL Ltd. and Rajinder Prasad and as such at this stage of taking cognizance and issuing process, there is no question of application of Section 319 Cr.P.C.; and (iii) in the judgments relied upon by the learned counsel for the petitioners, the factual and legal aspects involved therein were not identical to the facts and legal aspect involved in the instant case and, therefore, they are on different footing and do not help the case of the petitioners, rather the judgment in Sukh Dass case (supra), goes against the petitioners. (21). In this view of the matter, the accused-petitioners, who were left out by the investigating officer and were not put up for trial, can be summoned under Section 190 (1) (b) and Section 204 Cr.P.C. Therefore, the impugned order does not suffer from any illegality, irregularity or perversity. (22). Consequently, I find no merit in the revision petition and it is accordingly dismissed.