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2004 DIGILAW 448 (PAT)

Chandra Shekhar Mishra v. State Of Bihar

2004-04-19

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. The petitioner seeks quashing of the order of cognizance dated 8.8.2003 taken by the Chief Judicial Magistrate, Banka, in Banka PS Case No. 236/2001 lodged under Section 420, 465, 466, 468, 471 and 120-B of the Indian Penal Code. 2. An FIR was lodged on 9.8.2001, registered as Banka PS Case No. 236/2001 under Sections 420, 465, 466, 468, 471 and 120-B of the Penal Code. The informant, Sri Arun Kumar Singh, 1st Additional District and Sessions Judge, Banka, by his written report stated that Sessions Trial No. 645/97 arising out of Katoria PS Case No. 177/97 dated 18.11.1997 under Section 302, read with Section 34 was pending in his Court. One Agan Das was an accused in the case. Consequent to the non-production of the accused from custody on several dates, the informant intimated the fact in writing on 1.5,2001, 7.6.2001 and 5.7.2001 to the Jail Superintendent, Sub Jail Banka with a direction to produce the accused. Th& Jail Superintendent was also required to file a show cause. On 21.7.2001 the Jail Superintendent appeared in the Court and informed in writing that the accused Agan Das had been released. In pursuance of a release order dated 9.2.2001 issued by the Court of the informant. On the basis of the show cause, release order and other materials placed before him the informant came to the conclusion that the release order was forged and fabricated and that his signature upon the same was also forged. The release order did not bear the signature of any staff of his Court and neither did the release order bear the original seal of the Court, and that there was no record of the order in the concerned register of the Court. Another Sessions Trial No. 644/2000 was pending in the Court of the informant. One Kamdeo Rout was an accused therein, who had likewise been released on the basis of release order dated 9.2.2001, like accused Agan Das. The informant required production of the original release order before him. On perusal of the release order the informant discovered that the said release order dated 9.2.2001 was also forged. Another order dated 10.3.2001 in Cr. Misc. No. 1790/2001 by this Court was also produced before the informant for release of Kamdeo Rout. The informant required production of the original release order before him. On perusal of the release order the informant discovered that the said release order dated 9.2.2001 was also forged. Another order dated 10.3.2001 in Cr. Misc. No. 1790/2001 by this Court was also produced before the informant for release of Kamdeo Rout. The informant stressed that accused Kamdeo Rout submitted his bail bonds on 28.3.2001 while in accordance with the papers submitted by the Jail authorities on enquiry by the informant the said Kamdeo Rout had already been released on 9.2.2001 as mentioned hereinabove. Notwithstanding that Kamdeo Rout was released by this Court in Cr. Misc. aforesaid by order dated 10.3.2001 he submitted his bail bonds on 28.3.2001. The Jail authorities did not apprise the informant that accused Kamdeo Rout had already been released on 9.2.2001 on an alleged release order signed by the informant. The informant thus alleged that the said accused Agan Das and Kamdeo Rout in Sessions Trial Nos.645/1997 and 644/2000 secured their release in conspiracy on the basis of forged and fabricated release order in collusion with the Jail Superintendent of the Banka Sub Jail, Sri Chandra Shekhar Mishra (the petitioner herein), Assistant Jailor Sukhraj Singh and Warders Girish and Sahdeo Das along with others. The informant thus alleged that the aforesaid persons had. committed fraud with the Court and secured release of the two accused without any valid and legal release order. 3. This application under Section 482 Cr.PC pleads that the matter was thoroughly investigated by the Investigating Officer pursuant to the aforesaid First Information Report. The petitioner was allegedly found innocent and that the accused Agan Das and Kamdeo Rout were released on the basis of release order issued by the Assistant Jailor of Banka Jail and the petitioner as a Superintendent of Banka Jail merely counter-signed the Register of Undertrial prisoners. A Final Form was submitted on 31.3.2003 exonerating the petitioner from any criminal charges and supplementary charge-sheet was submitted against accused Agan Das and Kamdeo Rout. 4. This led to a protest petition by the informant in the Court of Chief Judicial Magistrate, Banka. Cognizance was taken thereupon on 8.8.2003 by the Chief Judicial Magistrate under Section 420, 465, 468, 477 and 120-B of the Indian Penal Code. 5. 4. This led to a protest petition by the informant in the Court of Chief Judicial Magistrate, Banka. Cognizance was taken thereupon on 8.8.2003 by the Chief Judicial Magistrate under Section 420, 465, 468, 477 and 120-B of the Indian Penal Code. 5. Based on the aforesaid averments of fact, the learned Senior Counsel Sri Rana Pratap Singh appearing on behalf of the petitioner submitted that from the averments made in the complaint it was apparent that the allegation was that a forged bail order was produced in relation to judicial proceedings, in a sessions trial of the Court presided over by the informant. Learned counsel, therefore, submitted that production of a forged documents during proceedings in judicial records would come within the purview of Section 195(1)(b)(ii) Cr.PC Learned Senior Counsel Shri Singh elaborating his submissions argued that since the case related to production of a forged and fabricated document, in view of Section 340 of the Code of Criminal Procedure, the informant was required to hold an inquiry under the provisions of Section 340 and it was only after his prima facie satisfaction that an FIR could be lodged. The said procedure not having been followed, the direct lodgement of the FIR was illegal and consequently the order of cognizance was also bad. In support thereof reliance was placed on a decision reported in 1998 (1) East Cr C 652 (SC) : (1998) 2 SCC 391 (State of Punjab V/s. Raj Singh). On the basis of said decision it was contended that the filing of the FIR without a preliminary enquiry under Section 340, Cr PC was bad as compliance of Section 340 Cr.PC was a pre-requisite for proceeding under. Section 195(1)(b)(ii). 6. The application was opposed by the learned Counsel for the State, who submitted that the lodgement of the FIR was perfectly justified in law and that the scope for proceeding under Section 340 Cr.PC juxtaposed with the provisions of Section195(1)(b)(ii) were not attracted in the present case. 7. Before proceeding to consider the rival contentions of the parties the Court considers it appropriate to record the contention of the petitioner in his own pleadings in para 14 that "if the instant matter is thoroughly examined and impartially considered this Honble Court will come to the safe conclusion that even no prima facie case is made out against the petitioner". It would thus be seen that it is the admission and contention of the petitioner himself that the matter/allegations are of the nature which required thorough examination/investigation to arrive at a conclusion of his innocence. Quite obviously proceedings under Section 482,Cr.PC cannot be a substitute for a duly constituted regular trial. 8. The contention of the learned Senior Counsel Shri Singh that the production of the forged and fabricated order having been made in course of judicial proceedings, the FIR was not maintainable in absence of a preliminary inquiry under Section 340, by the informant cannot be accepted. In the judgment reported in (1998) 2 S.GC 391, relied upon by the learned Senior Counsel, the position has succinctly been dealt with by the Supreme Court holding that there was no barrier to the lodging of an FIR under any cognizable offence committed in or in relation Jo any proceedings in Court. The statutory power of the Police to investigate under the Code of Criminal. Procedure is not in any way controlled or circumscribed by Section 195, Cr. PC. Only if a charge-sheet be laid on completion of such investigation before the Court, the Court would not be competent to take cognizance in view of the embargo of Section 195(1)(b)(ii). Quite obviously the Court before which the charge-sheet is laid would be required to form a pre-requisite opinion in an inquiry under Section 340, Cr PC. From the aforesaid judgment it would thus be seen that there is no bar in the institution of an FIR in respect of a cognizable offence committed or in relation to any proceedings in Court. Thus no fault can be found in the lodgement of the present FIR to this extent. An issue would now arise whether cognizance could have been taken on the basis of FIR without holding preliminary inquiry regarding the prima facie finding in accordance with the provisions of Section 340, Cr PC. This judgment in (1998) 2 SCC 391 (State of Punjab V/s. Raj Singh), delivered by a Bench of two Honble Judges of the Supreme Court did not have the occasion to consider in detail the exact scope and ambit of Section 195(1)(b)(ii) and therefore, this judgment would be of little avail to consider if production of forged and fabricated bail order in a judicial proceedings would come within the ambit of the aforesaid provisions. 9. 9. This aspect of the matter has been dealt with in the judgment reported in 1998 (1) East Cr C 894 (SC) : AIR 1998 SC 1121 (Sachida Nand Singh V/s. State of Bihar) by a Bench of three Honble Judges of the Supreme Court. The said appeal arose from a judgment of this Court. In the said case a complaint was filed in the Court of Chief Judicial Magistrate, alleging offences under Section 468, 469, and 471 of the Indian Penal Code, apart from other Sections. The allegation was that a forged document (Certified copy of Jamabandi Rent Roll) was produced in the Court of Executive Magistrate dealing with the proceedings of Section 145 of the Code. Learned Chief Judicial Magistrate forwarded the complaint to the Police under Section 156(3) of the Code. An FIR was lodged by the police on the basis of a private complaint and the charge-sheet was laid against the appellants therein for those offences. The learned Chief Judicial Magistrate took cognizance which as challenged before this Court in a proceeding under Section 482, Cr. PC on the ground that the Magistrate, could not have taken cognizance of the said offence in view of the bar contained in Section 195(1)(b)(ii) of the Code of Criminal Procedure. It would be necessary to set out the provisions of Section 195(1)(b)(ii) for ready reference as below: "No Court shall take cognizance of any offence described in Section 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." 10. A similar argument, as raised by the learned Senior Counsel in the present case, was sought to be raised before the Supreme Court that if the offence alleged is with respect to a document which reached the Court, the aforesaid bar of Section 195(1)(b)(ii) operates, and it was not relevant whether the offence was committed before or after its production in Court. The crucial act therefore, was the decisive event of production of the document in Court, For attracting the bar under the aforesaid provisions. It would thus be apparent that the clause reveals two preconditions for operation of the bar. The crucial act therefore, was the decisive event of production of the document in Court, For attracting the bar under the aforesaid provisions. It would thus be apparent that the clause reveals two preconditions for operation of the bar. Firstly, there must be an allegation that the offence of the nature described in the said section has been commited. Secondly, such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any Court. 11. There would thus be no dispute that if forgery was committed while the document was in custody of the Court, the prosecution could be launched only on a complaint by the Court. Likewise, if the forgery was committed with a document which had not been produced in a Court, then the prosecution would lie at the instance of any person. The question would be that mere production of such forged and fabricated document outside the Court, by tondering the same before the Court would make all the difference. 12. Since Section 340, has a direct co-relation with Section 195(1)(b)(ii), it would be necessary to set out the same also for a better and proper appreciation:- "Procedure in cases mentioned in Section 195. (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that is it expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and given evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this Section shall be signed (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this Section, "Court" has the same meaning as in Section 195." From the aforesaid, it would appear that Section 195(1)(b)(ii) would perhaps be capable of two interpretations as considered and dealt with by their Lordships in their aforesaid judgment. Their lordships then proceeded to hold that quite obviously given the nature of the legislation a restrictive interpretation would have to be given since it curbs a general jurisdiction of the Court and possibility of misuse by unscrupulous litigant would also have to be borne in mind. 13. In the aforesaid background their Lordships proceeded to hold that the offence of forgery and fabrication affect the administration of justice if it be 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. In the said circumstances, a preliminary inquiry under Section 340 would be required. This would be the position that would emerge from the conjoint reading of the aforesaid two judgments of the Apex Court. The conclusion of the Apex Court was that it was a strained reading that any person involved in forgery of document if committed outside precincts of the Court and long before its production in the Court could also be treated as one affecting administration of justice merely because that document later reached the Court records was not appropriate. That is the position here. The conclusion of their lordships then records that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable in the case where forgery of the document was committed before the document was produced in Court. 14. That is the position here. The conclusion of their lordships then records that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable in the case where forgery of the document was committed before the document was produced in Court. 14. In the facts of the present case, it is not the case of the petitioner that the forgery was committed while release order was custodia legis. It is the contention of the petitioner himself and as it is apparent from the FIR that the forgery and fabrication was done outside the Court proceedings and then forged and fabricated document was laid before the Court. Consequently in view of the aforesaid law this would not be a case falling under the provisions of Section 195(1)(b)(ii) of the Code. 15. In the aforesaid facts and circumstances, the lodgement of the present FIR was valid and in accordance with law. The provisions of Section 195(1)(b)(ii) not being attracted on facts in the present case, Section 340 of the Code has no application and the order of cognizance is valid in law. 16. There is thus no merit in this application. This application is, therefore, dismissed.