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2008 DIGILAW 1715 (PNJ)

B. P. Bansal v. Mohinder Kumar

2008-10-03

M.M.S.BEDI

body2008
JUDGMENT M.M.S. Bedi, J. - This petition has been filed by three Advocates of Ludhiana under Section 482 Criminal Procedure Code challenging the validity of order dated May 23, 2005 (annexure P-5) passed by Additional Sessions Judge, Ludhiana while deciding a revision petition titled Mohinder Kumar v. B.P. Bansal and others. Vide order dated May 23, 2005, annexur P-5, the revisional Court has set aside the order dated February 7, 2005 passed by Judicial Magistrate Ist Class, Ludhiana, dismissing the criminal complaint filed by the respondent at summoning stage. 2. For the just decision of this petition, a reference to the relevant facts is necessary. The respondent-Mohinder Kumar had filed a complaint dated August 28, 2004 in the Court of Judicial Magistrate Ist Class, Ludhiana, on September 24, 2004, alleging that the petitioners in the capacity as Advocates had committed fraud by signing for one another in Labour-cum-Conciliation Office, Circle 6, Ludhiana, whereas they were not even permitted by law under Rule 36 (3) of the Industrial Disputes Act, 1947, to be present for conciliation. The signatures given in documents in Labour Court by petitioner B.P. Bansal and Manoj Bansal do not match with the signatures of authorization letter submitted before the Labour Officer, Circle 6, Ludhiana. The Judicial Magistrate Ist Class, Ludhiana, vide order dated February 7, 2005 dismissed the complaint (Annexure P-3). A perusal of the order passed by Judicial Magistrate Ist Class, Ludhiana, indicates that the Additional CJM, who was Illaqa Magistrate of Police Station Division No. 5, had called for the report of SHO on application of the complainant-respondent. The SHO had recorded the statement of complainant-respondent on September 16, 2004. In his statement, the respondent had stated that he was Surgeon in Mohan Dai Hospital since August 4, 1995. He had gone to Saudi Arabia on July 3, 1999, after giving leave application. On May 8, 2000 he came hack but was not allowed to enter the Hospital regarding which his case is pending in the Labour Court. In Labour Court, petitioners B.P. Bansal, Rajneesh Bansal and Manoj Bansal, appeared as Advocates against him on behalf of owners of the Hospital. Power of Attorneys were filed before Labour Court with their signatures made in presence of complainant and Judge Sh. A.K. Singla. These signatures do not tally. In Labour Court, petitioners B.P. Bansal, Rajneesh Bansal and Manoj Bansal, appeared as Advocates against him on behalf of owners of the Hospital. Power of Attorneys were filed before Labour Court with their signatures made in presence of complainant and Judge Sh. A.K. Singla. These signatures do not tally. Petitioner-B.P. Bansal, Advocate of Labour cases also made a statement to the police and stated that he is an Advocate of Mohan Dai Hospital before the Labour Court. The respondent Dr. Mohinder Kumar had filed the case and the petitioners has appeared against him in the Labour Office and Labour Court. The leave of respondent for one month was rejected. He had left India for Saudi Arabia. The respondent had served in Paha Hospital where also he had a dispute with the Management and was removed on September 13, 2004. It is reflected from the order that the police had arrived at a conclusion that the signatures of Advocates on Vakalat Nama and signatures appended by them in presence of the Court of Sh. A.K. Singla, do not tally. The SHO had recommended for filing of the complaint because police had nothing to do in this regard. After the police had concluded that the allegations in the complaint were incorrect and recommended filing of the complaint, the respondent filed a complaint before the Judicial Magistrate Ist Class, Ludhiana, with the allegations that on March 7, 2003 Manoj Bansal, petitioner No. 3 appeared before Labour-cum-Conciliation Officer, Ludhiana and gave an authority letter on which he did signatures for B.P. Bansal-petitioner No. 1 and Rajneesh Bansal, petitioner No. 2 in presence of complainant aid prayed that the Court should prosecute the petitioners for forgery. The Court of Judicial Magistrate, Ist Class, Ludhiana, Sh. Sangeet Pal Singh vide order dated February 7, 2005 dismissed the compliant filed by the respondent forming an opinion that even if for the sake of argument it was admitted that signatures of Advocates on documents filed before the Labour Court and on the documents filed before Labour-cum-Conciliation Officer, are different, the same did not cause any loss to the respondent nor caused any wrong to the Advocates as such the necessary ingredients of forgery under Section 463 Indian Penal Code were not made out, as all the three Advocates were authorized by the Management to appear in the Court and anyone of the three could get his presence marked. The complaint was dismissed vide order dated February 7, 2005. Copy of the order dismissing the complaint of the respondent is annexure P-3 dated February 7, 2005. The respondent was not satisfied with the order of dismissal of his complaint annexure P-3, therefore, he preferred a revision petition against the order dated February 7, 2005 passed by Sh. Sangeet Pal Singh, JMIC, Ludhiana. 3. The revisional Court took into consideration the provisions of Section 195 Criminal Procedure Code and held that when an offence under Section 163 Indian Penal Code is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court said Court can take cognizance if complaint is filed by the Court. The said Court can take the cognizance of an individual. In such circumstances, the individual can move under Section 340 Criminal Procedure Code where procedure is prescribed for cases mentioned in Section 195 Criminal Procedure Code The relevant portion of the order passed by revisional Court is reproduced for ready reference :- "9. After considering the submissions of the complainant, I am of the view that complaint is filed basically to take action against the three Advocates for signing for one and the other in Labour-cum-Conciliation Officer (Circle 6) Ludhiana and the said document was given in the Honble Labour Court. Section 463 of the Indian Penal Code is as under :- "Whoever makes any false documents or Electronic Record part of a document or Electronic Record with intent to cause damage or injury, to the public or to any person, or to support my claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." As per provisions of Section 195 Criminal Procedure Code, no Court can take cognizance of any offence described in the Section 463, or punishable under Section 471, Section 475 or Section 476 of the Indian Penal 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. So court can take cognizance only if complaint is filed by the Court. The Court cannot take cognizance on the complaint of an individual. So court can take cognizance only if complaint is filed by the Court. The Court cannot take cognizance on the complaint of an individual. Under such circumstances an individual can move under Section 340 Criminal Procedure Code where procedure is prescribed for cases mentioned in Section 195 Criminal Procedure Code Section 340 Criminal Procedure Code is as under :- "1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is 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 first class having jurisdiction; (d) Take sufficient security for the appearance for 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." In view of the bar created by 195 Criminal Procedure Code Ld. Lower Court could not take the cognizance of complaint dated 28.8.29004 but instead of asking the complainant to move the Labour Court for initiation of action against the accused, Ld. Lower court dismissed the complaint on merits. So order under revision is not correct and legal. 10. One other complaint was moved by the complainant on 16.12.04, instead of separately registering the said complaint and separately trying the said complaint, same was attached with this file. Complaint dated 16.12.04 was separate complaint in which some other criminal acts which were alleged to have been committed were mentioned, so the trial court was required to try said complaint separately. Since trial court failed to take cognizance of said complaint dated 16.12.04 separately, so the said complaint is required to remanded back to the trial court with the direction to try the same in accordance with law. 11. Since trial court failed to take cognizance of said complaint dated 16.12.04 separately, so the said complaint is required to remanded back to the trial court with the direction to try the same in accordance with law. 11. In the light of the above discussion, the order under revision is not sustainable in the eyes of law, so the same is hereby set aside. Complainant is advised to move the Labour Court under section 340 Criminal Procedure Code if he desires with regard to the acts of accused mentioned in complaint dated 28.8.04. The ld. Trial Court is directed to separate the complaint dated 16.12.04 and register the same separately and to try the sane in accordance with law. Revisionist is directed to appear before the trial Court on 27.5.05. Copy of this judgment be placed on the file of Ld. Lower Court and same be returned immediately. This file is ordered to be consigned to record room. Announced. Sd/-Addl. Sessions Judge, 27.5.05 Ludhiana." 4. So far as the complaint moved by respondent dated December 16, 2004 is concerned, this Court is not concerned with the same as counsel for the petitioners has submitted that the said complaint has also been dismissed after the remand. The sole grievance of the petitioners is that the revisional Court has, without jurisdiction relegated the respondent to seek the remedy by filing a compliant under Section 340 Criminal Procedure Code as the Labour Court constituted under the Industrial Disputes Act, 1947 is not a Court for the purpose of provisions of Section 195 (1) (b) Criminal Procedure Code In support of his contention, he has placed reliance on judgment of Honble Supreme Court in Bharat Bank Ltd, Delhi v. The Employees of Bharat Bank Ltd., Delhi, AIR 1950 Supreme Court 188 and a Division bench judgment of Patna High Court in R.S. Murthy v. R.K. Naug and another, 1976 II LLJ 53. 5. On the other hand, respondent Dr. Mohinder Kumar appeared in person and stated that in view of the provisions of Section 11 of the Industrial Disputes Act, the Board of conciliation or Court of enquiry constituted under the Industrial Disputes Act, certain powers of the Court have been provided for compelling the attendance of all witnesses, production of documents etc. On the other hand, respondent Dr. Mohinder Kumar appeared in person and stated that in view of the provisions of Section 11 of the Industrial Disputes Act, the Board of conciliation or Court of enquiry constituted under the Industrial Disputes Act, certain powers of the Court have been provided for compelling the attendance of all witnesses, production of documents etc. and that any enquiry or investigation by the Tribunal is deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code, therefore, the proceedings before the Labour-cum-Conciliation Officer, should be termed as a Court and that an application under Section 340 Criminal Procedure Code is maintainable if a forgery has been committed by a party in some documents produced before said Tribunal. Respondent has also contended that petitioners had earlier approached this Court by filing a Crl. Misc. No. 52269-M of 205 which was dismissed as withdrawn on September 20, 2005 with liberty to approach the Court, if so required at a later stage. The second petition under Section 482 Criminal Procedure Code is thus not maintainable. He also argued that the petitioners can file an appeal under Section 341 Criminal Procedure Code in case they are aggrieved by the order passed by Court. 6. I have considered the preliminary objections of the petitioner regarding the maintainability of this petition under Section 482 Criminal Procedure Code after the withdrawal of first petition vide order dated September 20, 2005. The petitioners had impugned the order annexure P-5 but it was withdrawn vide annexure P-8 on September 20, 2005. The respondent had not taken any action by said date, therefore, no reason for the petitioners to pursue the petition under Section 482 Criminal Procedure Code as no prejudice was being caused to the petitioners pursuant to the observations of the revisional Court vide annexure P-5 but subsequently the respondent filed complaint under Section 340 Criminal Procedure Code before the Labour Court and the Labour Court had issued a notice on December 10, 2007 and adjourned the matter for December 11, 2007 and December 20, 2007. The said compliant under Section 340 Criminal Procedure Code filed by the respondent has been placed on record as annexure P-9 dated May 30, 2005. The said compliant under Section 340 Criminal Procedure Code filed by the respondent has been placed on record as annexure P-9 dated May 30, 2005. It is interesting to note that complaint annexure P-9 under Section 340 Criminal Procedure Code has not been filed only against petitioner No. 1 but has been filed against four other persons connected with Mohan Dai Oswal Cancer and Research Foundation. No notice had been received by the petitioners in said application under Section 340 Criminal Procedure Code prior to the filing of this petition when order annexure P-8 was passed by this Court. The right to file the present petition had been reserved while withdrawing the earlier petition. On prejudice having been caused on account of the impugned order annexure P-5, this petition is maintainable as the petitioners have been able to establish that the observations in impugned order annexure P-5 is an abuse of the process of the Court and it is necessary for securing the ends of justice to interfere in the impugned order. A perusal of the order annexure P-5 passed by the revisional Court indicates that revisional Court was required to examine the legality and propriety of the order dated February 7, 2005 passed by JMIC, Ludhiana, dismissing the criminal complaint filed by respondent regarding the forgery committed by petitioner No. 3 in appending the signatures of petitioners No. 1 and 2, Advocates on the form of authority under Section 36 of the Industrial Disputes (Central) Rules), 1957. the learned Magistrate had dismissed the compliant on the ground that prima facie offence under Section 453 Indian Penal Code was not made out but the Additional Sessions Judge in exercise of revisional jurisdiction had usurped the authority and made an observation that the complainant- respondent may move the Labour Court under Section 340, if he desired with regard to the acts of the accused (petitioners) mentioned in the complaint. 7. I have heard counsel for the petitioner as well as respondent at length and carefully gone through the entire record. 7. I have heard counsel for the petitioner as well as respondent at length and carefully gone through the entire record. A very short question which requires to be determined in the present case is whether the order passed by Additional Sessions Judge, Ludhiana advising the complainant-respondent to move the Labour Court under Section 340 Criminal Procedure Code is a legal order and that whether prosecution for forgery can be launched against petitioner No. 3- Manoj Bansal for having done she signatures of petitioners No. 1 and 2, B.P. Bansal and Rajneesh Bansal before Labour-cum-Conciliation Officer, Ludhiana, on the authority letter submitted before the said officer. 8. It will be relevant to refer to Section 195 Criminal Procedure Code which prohibits any Court to take cognizance of an offence described in Section 463 or punishable under Sections 471, 475 or 476 Indian Penal Code when said offence is alleged to have been committed in respect of the document produced or given in evidence in a proceeding in any Court. Section 195 Criminal Procedure Code provides for Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No Court shall take cognizance - (a) xx xxx xxx (b) (i) xx xx xx (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) xx xx xx. Section 340 Criminal Procedure Code described the procedure in cases mentioned in Section 195 Criminal Procedure Code Section 340 Criminal Procedure Code reads as follows :- "1) When upon an application made to it in this behalf or otherwise any court is of opinion that, it is 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 first class having jurisdiction; (d) Take sufficient security for the appearance for 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. (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." 9. (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." 9. A perusal of Section 340(4) Criminal Procedure Code indicates that the "Court" has the same meaning as in Section 195 Criminal Procedure Code Whether the Industrial Tribunal or the Labour-cum-Conciliation Officer exercising the powers under the Industrial Disputes Act can be said to be a Court for the purpose of Section 195(3) Criminal Procedure Code came up for consideration before Honble Supreme Court in Keshab Narayan Banerjee v. State of Bihar, AIR 2000 Supreme Court 485. Relevant portion of the judgment is reproduced as under :- "7. The word Court is a word of very wide connotation. In legal parlance it indicates place where justice is judicially administered. But for the purposes of Section 195(1)(b) of the Code we have to go by the definition of the word Court contained in sub-section (3) of that Section. Under the old Code (1898 Code) the term Court was defined differently, and it read "In clauses (b) and (c) of sub-section (1) the term Court includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub- Registrar under the Indian Registration Act, 1877." While enacting the new Code Section 195 was redrafted as recommend by the Law Commission in its 41st Report. The Commission had felt that for the purposes of clause (b) of sub- section (1), the term Court, should mean a Civil Court, a Revenue Court or a Criminal Court properly so called and include a Tribunal created by an Act if it is declared by that Act to be a Court for the purposes of Section 195. The term Court had a wider meaning under the old Code but under the new Code it is given a restricted meaning. Now the word Court does not include all the judicial bodies and authorities constituted for administering justice. The Courts contemplated now by Section 195 are only Civil Courts, Revenue Courts and Criminal Courts and those Tribunals which are required by the Acts constituting them to be Courts for the purposes of Section 195. 8. Now the word Court does not include all the judicial bodies and authorities constituted for administering justice. The Courts contemplated now by Section 195 are only Civil Courts, Revenue Courts and Criminal Courts and those Tribunals which are required by the Acts constituting them to be Courts for the purposes of Section 195. 8. As to what are Courts and Tribunals, this Court in Canara Bank v. Nuclear Power Corporation of India Ltd, 1995 Supp(3) SCC 81, after referring to its earlier decision in Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala, (1962)2 SCR 339 and particularly the judgment delivered by Hidayatullah, J., observed as under : "He said that all tribunals were not Courts though all Courts were tribunals. The word Courts was used to designate those tribunals which were set up in an organised State for the administration of justice. By administration of justice was meant the exercise of the judicial power of the State to maintain and uphold rights and to punish wrongs. Whenever there was an infringement of a right or an injury, the Courts were there to restore the "vinculum juries". When rights were infringed or invaded, the aggrieved party could go and commence a querela before the ordinary civil Courts. These Courts were invested with the judicial power of the State and their authority was derived from the Constitution or some Act of legislature constituting them. Their number was ordinarily fixed and they were ordinarily permanent and could try any suit or cause within their jurisdiction. Their numbers might be increased or decreased but they were almost always permanent and went under the compendious name of "Courts of Civil Judicature. With the growth of civilisation and the problems of modern life, a large number of administrative tribunals had come into existence. These tribunals had the authority of law to pronounce upon valuable rights. They acted in a judicial manner and even on evidence on oath, but they were not part of the ordinary Courts of civil judicature. They shared the exercise of the judicial power of the State but were brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They acted in a judicial manner and even on evidence on oath, but they were not part of the ordinary Courts of civil judicature. They shared the exercise of the judicial power of the State but were brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They were very similar to Courts but were not Courts." This Court has also further observed in this behalf as under : "A Court in the strict sense was a tribunal which was a part of the ordinary hierarchy of Courts of civil judicature maintained by the State under its Constitution to exercise the judicial power of the State. These Courts performed all the judicial functions of the State except those that were excluded by law from their jurisdiction. The word judicial was itself capable of two meanings. It might refer to the discharge of duties exercisable by a judge or by justices in Court or to administrative duties which need not be performed in Court but in respect of which it was necessary to bring to bear a judicial mind to determine what was fair and just in respect of the matters under consideration. That an officer was required to decide matters before him judicially in the second sense did not make him a Court or even a tribunal because that only established that he was following a standard of conduct and was free from bias or interest. Courts and tribunals acted judicially in both senses and in the term Courts were included the ordinary and permanent tribunals and in the term tribunals were included all others which were not so included." 10. Courts and tribunals acted judicially in both senses and in the term Courts were included the ordinary and permanent tribunals and in the term tribunals were included all others which were not so included." 10. A perusal of the abovesaid observations indicates that under Section 195 Criminal Procedure Code "Court" means only civil Court, Revenue Court and Criminal Courts and those Tribunals which are required by the acts constituting them to be Courts for the purpose of Section 195 Criminal Procedure Code In The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi, AIR 1950 Supreme Court 188(1), the Honble Supreme Court taking into consideration the nature of the powers exercised by a Tribunal under the Industrial Disputes Act, 1947 and the powers exercised under the Rules framed under Section 38 of the Act as well as the powers exercised under Section 11(3) of the Act arrived at a conclusion that the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions, although it is not a Court in technical sense of the word. A similar question cropped up before a Division Bench of Patna High Court in R.S. Murthys case (supra) wherein in context to provisions of Section 195(1) (b) Criminal Procedure Code it was held that the Industrial Tribunal is not a Court within the meaning of Section 195(b) Criminal Procedure Code Following the ratio of the judgment of Bharat Banks case (supra) and R.S. Murthys case (supra) I have got no hesitation in holding that Labour-cum-Conciliation Officer exercising powers under Industrial Disputes Act is not a "Court" within the meaning of cads Section 195(1)(b) of the Code, therefore, an application for enquiry under Section 340 Criminal Procedure Code for offence of forgery alleged to have been committed by an Advocate by doing signatures of another counsel on form F under Rule 36 of the Industrial Disputes (Central) Rules, 1957 is not maintainable. The direction of revisional Court vide order annexure P-5 dated May 27, 2005 advising the respondent to file an application under Section 340 Criminal Procedure Code for taking cognizance of cases mentioned in Section 195 Criminal Procedure Code is without jurisdiction and is an abuse of the process of the Court. The direction of revisional Court vide order annexure P-5 dated May 27, 2005 advising the respondent to file an application under Section 340 Criminal Procedure Code for taking cognizance of cases mentioned in Section 195 Criminal Procedure Code is without jurisdiction and is an abuse of the process of the Court. The order annexure P-5 of giving direction/advise to the respondent to that effect is not sustainable and deserves to be ignored being without jurisdiction. As it is an abuse of the process of the Court, to permit the respondent to file an application under Section 340 Criminal Procedure Code for lodging a complaint in writing before the Tribunal or before some other Court, the complaint filed by the respondent, annexure P-9 presented before the Presiding Officer, Labour Court, Patiala for an enquiry under Section 340 Criminal Procedure Code for prosecution as per Section 195 Criminal Procedure Code is an abuse of the process of the Court and not maintainable, is liable to be quashed. All the proceedings on the basis of order annexure P-5 and complaint annexure P-9 are vitiated and are hearby quashed. Allowed in the aforesaid terms. Petition allowed.