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2006 DIGILAW 167 (CHH)

LAXMI KANT v. STATE OF C. G.

2006-03-10

D.R.DESHMUKH

body2006
ORDER 1. This order shall govern Criminal Revision No.2912005 preferred against the order dated 29.1 0.2004 passed by Shri A.L. Dahariya, 1st Additional Sessions Judge, Mahasarnund in Sessions Case No. 125/2003 whereby the application filed by the applicant herein under Section 193 read with Section 465 and 227 of the Criminal Procedure Code was dismissed and Criminal Revision No.78/2006 whereby the order dated 9.1.2006 passed by the aforesaid learned 151 Additional Sessions Judge framing charges under Sections 195,209,211,466,469 and 471 of the I.P.C. against the applicant is sought to be quashed. 2. Brief facts are that one Vinod Joshi filed a private complaint in the Court of Chief Judicial Magistrate on 19.07.2001 under Sections 448, 392, 323 and 506 I.P.C. against Netram Chandrakar, Bajrang Sonwani and Ravindra Shukla After recording the evidence of the complainant under Section 200 and the witnesses under Section 202 Cr.P.C, Shri A.K. Gaikwad, the then Chief Judicial Magistrate, Mahasamund took cognizance of offence under Sections 451,392,323,506 and 448 of the I.P.C. on 1.8.2001 and ordered issuance of notice to the aforesaid accused-persons. On 7.8.2001 when it was brought to the notice of Shri A.K. Gaikwad, the then Chief Judicial Magistrate that newspapers reports had disclosed that a case has been registered against Shri Virnal Chopra, President of the Municipal Council and a bailable warrant of arrest has been issued by the Court of Chief Judicial Magistrate, he made a preliminary enquiry and found that the name of Shri Vimal Chopra, President, Municipal Council, Mahasamund, C.G. was forged in the title of the complaint after cognizance had been taken by the Court against the accused No. 1 to 3. The learned Chief Judicial Magistrate reported the matter to the District Judge, Raipur and sought permission for a detailed enquiry. . 3. Upon being permitted by the District Judge, Shri A.K. Gaikwad held a detailed enquiry and sent a report on 12.9.2001 to the District Judge that Shri L.K. Tiwari. Advocate for the complainant had in complaint case No.450/200 I added the name of VImal Chopra as accused No.4 in the title of the complaint on 1.8.2001 i.e. after the Court took cognizance of the offence mentioned above. Upon such report being sent, the District Judge, Raipur vide memo dated 12.10.2001 directed the C,J.M. to take action against Shri L.K. Tiwari, Advocate. 4. Upon such report being sent, the District Judge, Raipur vide memo dated 12.10.2001 directed the C,J.M. to take action against Shri L.K. Tiwari, Advocate. 4. On 21.11.2001 Shri A.K. Gaikwad made a written complaint to the S.H.O. Police Station, Mahasamund for registering criminal case against Shri L.K. Tiwari. In the aforesaid complaint, he mentioned that although during enquiry Shri L.K. Tiwari, Advocate did not appear before him to make a statement, yet he had orally told him that the name of accused No.4 Vimal Chopra was added by him at the time of filing of the complaint. Shri A.K. Gaikwad inhis complaint directed the S.H.O. P.S. Mahasamund to investigate the matter and to file a charge-sheet. 5. The S.H.O. P.S. Mahasamund after conducting investigation filed a charge-sheet under Sections 195,209,211,466,467 and 471 against Shri Laxmikant Tiwari. 6. An application under Section 193 read with Section 465 and 227 Cr.P.C. was filed by the applicant herein that cognizance of offences mentioned under Section 195(1)(b) Cr.P.C. could only be taken upon a complaint in writing of that Court in which the offence was alleged to have been committed in respect of a document produced in any proceeding. The learned 1st Additional Sessions Judge vide impugned order dated 29.10.2004 dismissed the application on the ground that since the offences under Sections 466 & 469 I.P.C. were not covered under Section 195(1)(b)(i) & (ii) of the Code of Criminal Procedure the bar under Section 195 Cr.P.C. was not attracted. This order has been impugned in Criminal Revision No.29/2005. 7. On 09.01.2006 the learned Additional Sessions Judge framed charges under Section 195,209, 211, 466, 469 and 471 I.P.C. against the applicant herein. Criminal Revision No. 78/2006 was preferred to quash the charges framed vide order dated 9.1.2006 on the ground that the procedure under Section 340 Cr.P.C. had not been followed and in view of the bar under Section 195(1) Cr.P.C. unless a complaint in writing was made by the Court of the Chief Judicial Magistrate, no cognizance of the aforesaid offences could have been taken. 8. Section 195(1) of the Code of Criminal Procedure reads as follows :- "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. 8. Section 195(1) of the Code of Criminal Procedure reads as follows :- "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - No Court shall take cognizance (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence., except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of1860), namely, Sections 193 to 196 (both inclusive), 199,200 to 211 (both inclusive and 228, when such offence, is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) 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, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or subclause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate." 9. During enquiry conducted by Shri A.K. Gaikwad, Shri Laxmikant Tiwari, Advocate, the applicant herein, had admitted that the name of Shri Vimal Chopra, President, Municipal Council, Mahasamund as accused No.4 appearing in the cause title of the complaint was in his hand-writing although he stated that the name existed in the complaint when it was filed before the Court of C.J.M. However, this is clearly negatived by the order sheet dated 19.7.2001 which shows that on 19.7.2001 the complaint had been filed only against Netram Chandrakar, Bajrang Sonwani and Ravindra Shukla The name of Vimal Chopra is clearly not found therein. 10. 10. It thus appears prima facie that Shri Laxmikant Tiwari, Advocate had forged the name of Shri Vimal Chopra, President, Municipal Council, Mahasamund (C.G.) as the accused No.4 in the title of the complaint after the Court took cognizance of the offence under Sections 451, 392, 323, 506 and 448 LP.C. against the accused No. I to 3 on 1.8.2001. This act of Shri Laxmikant Tiwari thus prima facie revealed offences under sections 466, 469 and 471 I.P.C. squarely covered under Section I 95(b)(i) & (ii) Cr.P.C. Thus, cognizance for the aforesaid offences could be taken only on the complaint in writing of the Court of Chief Judicial Magistrate, Ambikapur. 11. Section 340 of the Cr.P.C. lays down the procedure when any Court is of the opinion that it is expedient in the interest of justice that an enquiry 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 proceedings 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 there of in writing; (c) send it to a Magistrate of the fITSt class havingjurisdiction. (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 give evidence before such Magistrate. 12. In the present case, Shri A.K. Gaikwad, the then C.J .M. after holding a preliminary enquiry made a complaint in writing to the Station House Officer, P.S. Mailasamund who after enquiry found a prima facie case under Sections 195, 209,211,466,469 and 471 I.P.C. against Shri L.K.Tiwari, Advocate. These offences were covered under section I 95(1)(b)(i) and (ii) of Cr.P.C .. In the present case, Shri A.K. Gaikwad, the then C.J .M. after holding a preliminary enquiry made a complaint in writing to the Station House Officer, P.S. Mailasamund who after enquiry found a prima facie case under Sections 195, 209,211,466,469 and 471 I.P.C. against Shri L.K.Tiwari, Advocate. These offences were covered under section I 95(1)(b)(i) and (ii) of Cr.P.C .. A report ought to have been sent by the police to Shri A.K. Gaikwad who in turn could have considered under Section 340 Cr.P.C. whether it was expedient in the interest of justice that a complaint in writing should be made to the Court having jurisdiction to try such offences referred to in clause (b) of sub-section (1) of Section 195 Cr.P.C. which appeared to have been committed in relation to the proceeding in his Court. In the present case, the police filed a charge sheet directly in the Court of C.J.M. Mahasamund for offences under sections 195,209,211,466,469 and 471 I.P.C. and the C.J .M. thereafter committed the criminal case to the Court of Sessions. 13. In view of the bar under Section 195(1) Cr.P.C. the learned Additional Sessions Judge did not have jurisdiction to take cognizance of the offences under Section 195,209,211,466,469 and 471 LP.C. since there was no complaint in writing by the Court of C,J.M., Mahasamund. Thus, the prosecution of the applicant herein for offences under Sections 195,209,211,466,469 and 471 I.P.C. was clearly hit by Section 195(1) Cr.P.C. since no cognizance could have been taken by the learned Additional Sessions Judge of the aforesaid offences in the absence of any complaint in writing by the C.J.M. Mahasamund. The impugned orders dated 29.10.2004 and 9.1.2006 are contrary to law and liable to be set aside. 14. In the result, Criminal Revision No.29/2005 & Criminal Revision No.78/ 2006 are allowed. The impugned orders dated 29.10.2004 and 9.1.2006 are set aside. Charges framed under Sections 195,209,211,466,469 and 4711.P.C. against the applicant are quashed. Revision Allowed.