Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 125 (PNJ)

Rakesh Goel - v. Maneesh Goel -

2005-01-24

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity `the Code) prays for quashing the order dated 11.4.1990 passed by the ld. Addl. Sessions Judge, Karnal directing the trial Court to follow the procedure as laid down under Section 340 of the Code. Further direction has also been issued to record finding with regard to the veracity of the complaint made by the complainant-respondent Bhagwat Goel who had filed an application under Section 340 of the Code. 2. Brief facts of the case necessary for the disposal of the instant petition are that the petitioner, Rakesh Goel filed a civil suit against Maneesh Goel son of Bhagwat Goel. It is also appropriate to mention that Maneesh Goel is the nephew of Rakesh Goel. Taking serious view of the averments made by the petitioner in the suit an application under Section 340 of the Code was filed by Bhagwat Goel in the Court of Civil Judge, Panipat levelling allegations of fabrication of evidence and documents by the petitioner during the trial of the suit. On the basis of the allegations a request was made to the Court to proceed against the petitioner under Sections 193, 196, 199, 200 and 120-B IPC read with Sections 195 and 340 of the Code. The Civil Judge did not decide the application filed under Section 340 of the Code and proceeded to frame an additional issue No. 6.9.1988 in the civil suit itself. Having failed to persuade the Civil Judge to follow the procedure as contemplated under Section 340 Cr.P.C. the complainant-respondent filed an appeal before the ld. Addl. Sessions Judge who has accepted the submissions made by the complainant- respondent. He has issued directions to the trial Court to proceed with the complaint by following the procedure laid down under Section 340 of the Code and record a finding with regard to the veraciousness of the allegations. 3. Shri K.S. Malik, learned counsel for the petitioner has raised two issues while impugning the order of the ld Addl. Sessions Judge. He has firstly contended that no appeal was competent before the Addl. Sessions Judge and secondly the complainant-respondent could not have filed the complaint which was required to be filed only by the court. 3. Shri K.S. Malik, learned counsel for the petitioner has raised two issues while impugning the order of the ld Addl. Sessions Judge. He has firstly contended that no appeal was competent before the Addl. Sessions Judge and secondly the complainant-respondent could not have filed the complaint which was required to be filed only by the court. The learned counsel has also submitted that once an issue has been framed in the civil suit then no criminal complaint at the instance of the complainant-respondent was competent. In support of his submissions, the learned counsel has placed reliance on a Full Bench judgment of this court in the case of Madan Lal v. Punjab and Haryana High Court, 1999(2) RCC 592. 4. Shri Satbir Rathore, learned counsel for the respondent has argued that the order of the ld. Addl. Sessions Judge does not suffer from any legal infirmity because the procedure prescribed by Section 340 of the Code is mandatory. Learned counsel has submitted that the framing of an issue in the civil suit is no ground for refusal to decide the complaint filed by the complainant-respondent. He has maintained that the appeal is competent before the ld. Addl. Sessions Judge under Section 341 of the Code once the trial Court had refused to proceed with the complaint made by the complainant- respondent. 5. Having heard the learned counsel at some length, I am of the considered view that the order dated 11.4.1990 passed by the ld. Addl. Sessions Judge does not suffer from any legal infirmity warranting interference of this court. It is well settled that if an order is fabricated within the precincts of the Court then as a matter of public policy that Court alone has the jurisdiction to take cognizance and launch proceedings. Such a proceeding could be launched either on the application filed by a party or any other person or suo motu at the instance of the Court itself. A distinction is sought to be created between the fabrication committed in the precincts of the Court and outside the Court. If the fabrication is committed within the precincts of the court and thereafter such fabricated evidence is presented to the Court then the Court is entitled to launch prosecution by lodging a complaint under Section 340 of the Code. A distinction is sought to be created between the fabrication committed in the precincts of the Court and outside the Court. If the fabrication is committed within the precincts of the court and thereafter such fabricated evidence is presented to the Court then the Court is entitled to launch prosecution by lodging a complaint under Section 340 of the Code. However, if the fabrication is committed outside the precincts of the court and the forged document is presented to the court then the court has no jurisdiction to take cognizance of the offence and thus no power to launch prosecution. The aforementioned distinction sought to be created at the instance of the petitioner in Madan Lal Sharmas case (supra) was rejected by the Full Bench by observing as under :- "From reading of Section 195 as also the purpose for which the legislature enacted the same, it is quite apparent that the bar created under the said section operates against a party and not against a court. The court alone has jurisdiction to take cognizance of the offences described in Section 195(1)(b)(ii) to the exclusion of a party to the proceedings or other to launch prosecution if other ingredients of Sections 195 and 340 are also in existence. The only other ingredient where the court may take cognizance of the offences mentioned in Section 195(1)(b)(ii), as argued by learned counsel for the parties, is that the forgery should be with regard to a document which was lying in the court. In other words, the forgery should have been committed while proceedings in the matter are pending before a court. To such a forgery, the court alone, as mentioned above, has jurisdiction to take cognizance and launch prosecution. A party to the litigation or others are, by the language employed in Section 195(1)(b)(ii), debarred from launching prosecution. What, however, has been argued before us is that if the document has been forged outside the preciencts of the Court and has been produced in the court, the court shall have no jurisdiction to take cognizance of the offence and, thus, no power to launch prosecution. The proposition advanced by learned counsel for the petitioner cannot possibly be either supported on the basis of the provisions contained in Section 195(1)(b)(ii) or the purpose for which the said section was enacted by the legislature. The proposition advanced by learned counsel for the petitioner cannot possibly be either supported on the basis of the provisions contained in Section 195(1)(b)(ii) or the purpose for which the said section was enacted by the legislature. Confronted with this situation, learned counsel for the petitioner then exclusively relied upon some observations made in judicial precedents which shall be taken note of. Suffice it, however, to mention here that not a single case has been cited before us where some one might have successfully challenged the bar created under Section 195(1)(b)(ii) of the Code for the Court to take cognizance of the offences described therein and then to launch prosecution. The cases cited before us were where the document was forged outside the precincts of the Court and party to the proceedings or others had launched prosecution and the argument was that only the Court could launch complaint. That being the situation, before some observations made in the judicial precedents, as have been relied upon by learned counsel for the petitioner, are noticed, it shall be appropriate to give facts of such judicial precedents. The main reliance of learned counsel for the petitioner is upon Full Bench judgment of this Court in Harbans Singh v. State of Punjab, AIR 1987 Punjab and Haryana 19." (emphasis added) The basic rationale for the aforementioned observation appears to be that as a matter of public policy the matters concerning prosecution for contempt of lawful authority or for offence against public justice are not permitted to become tools for wreaking vengeance in the hands of private individuals. The aforementioned principle finds further elaboration and numerous other reasons have been recorded by the Supreme Court in that regard in its judgment reported as Sachida Nand Singh v. State of Bihar, 1998(1) RCR(Crl.) 823 (SC) : 1998(2) SCC 493. The observations of their Lordships while interpreting Section 195(1)(b)(ii) Cr.P.C. in this regard read as under : "A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference ? Even if the clause is capable of two interpretations we are inclined to choose the narrower interpretation for obvious reasons. Section 190 of the Code empowers "any Magistrate of the Ist Class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general power of the Magistrate, and the general right of a person to move the court with a complaint is to that extent curtailed. It is well recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise. (Abdul Wheed Khan v. Bhawani, AIR 1966 SC 1718)" Discarding the distinction made between the forgery inside the court and outside the court, Justice K.T. Thomas speaking for the Supreme Court observed as under : "That apart it is difficult to interpret Section 195(1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the court. Any such construction is likely to ensue unsavoury consequences. Any such construction is likely to ensue unsavoury consequences. For instance, if rank forgery of a valuable document is detected and the forgerer is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long drawn litigation which was either instituted by himself or somebody else who can be influenced by him and thereby pre-empt the prosecution for the entire long period of pendency of the litigation. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted....." 6. The Supreme Court also held that as Section 340(1) of the Code has an interlink with Section 195(1)(b) it is necessary to refer to that sub-section in the present context. No complaint can be made by a court regarding any offence falling within the ambit of Section 195(1)(b) of the Code without first adopting the procedural requirement of Section 340(1). The scope of the preliminary enquiry envisaged in Section 340(1) 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. So, the offences envisaged in Section 195(1)(b) must involve acts which would have affected the administration of justice. The offence should have been committed during the time when the document was in custodia legis. It would be strained thinking that any offence involving forgery of a document if committed far outside the 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. It must, therefore, be held that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. 7. On principle as well as on precedents it is evident that forgery and fabrication of document committed inside or outside the Court would be immaterial circumstance as long as the forged document is presented to the court as evidence. 7. On principle as well as on precedents it is evident that forgery and fabrication of document committed inside or outside the Court would be immaterial circumstance as long as the forged document is presented to the court as evidence. Then such a document would confer jurisdiction on the court to entertain and interfere with Section 340 of the code, if prima face case is made out as has been laid down by the Supreme Court in the case of K. Karunakarm v. T.B. Eachara Warrier, 1978(1) SCC 18. 8. In the case in hand, a complaint has been filed alleging fabrication of evidence and documents by the complainant-respondent during the proceedings in the civil suit No. 504 of 1985 which was instituted by the petitioner against the complainant-respondent. The Civil Judge instead of following the procedure laid down in Section 340 of the Code felt satisfied by framing an additional issue in the suit itself. The ld. Addl. Sessions Judge has rightly issued directions to the trial Court to undertake an enquiry under Section 340 of the Code and then proceed in accordance with the law. 9. The argument raised on behalf of the petitioner that no appeal was competent is liable to be rejected because the trial Court virtually refused to proceed with the complaint under Section 340 Cr.P.C. and felt satisfied by framing of additional issue in the suit. Under Section 341 of the Code any person on whose application the court has refused to make a complaint under sub-section (1) or (2) of Section 340 of the Code is entitled to file an appeal to such a court to which appeal ordinarily is filed. Therefore, there is no substance in the argument raised. For the reasons recorded above, this petition fails and the same is dismissed.