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2008 DIGILAW 411 (JHR)

Ram Vijay Singh v. State Of Jharkhand Through Cbi

2008-04-03

R.R.PRASAD

body2008
ORDER R.R. Prasad, J. 1. This application under Section 482 of the Code of Criminal Procedure was initially filed for a direction to the trial Court to hold enquiry under Section 340 of the Code of Criminal Procedure into the matter of forgery committed by opposite party No. 2 in respect of documents produced in the Court. However, subsequently prayer was amended wherein the order dated 19.12.2007 passed by learned Sub-Divisional Judicial Magistrate-cum-Special Judicial Magistrate, Dhanbad in R.C. case No. 11(S) of 2003 was sought to be quashed as the learned Magistrate refused to hold enquiry in terms of Section 340 of the Code of Criminal Procedure. 2. Learned Counsel appearing for the petitioner submits that one Pramod Kumar Singh (deceased) gave his fardbeyan to the Officer-in-Charge of Seraidela police station on 3.10.2003 in presence of a Doctor and three witnesses stating therein that when he reached to his residence at about 9.20 a.m. at Dhansar and was climbing to stair the accused Ramadhar Singh and Rajiv Ranjan Singh came over there all on a sudden and thereafter Rajiv Ranjan Singh, on being instigated by Ramadhar Singh, fired shot at him causing injuries, upon which a case was registered but subsequently he died and in course of investigation, neither the Investigating Officer nor the Superintendent of Police doubted the genuineness of the dying declaration given by the deceased. 3. Even then investigation of the case was handed over to the CBI and opposite party No. 2 took up the investigation of the case. In course of investigation, opposite party No. 2 filed an application on 13.9.2006 before the Metropolitan Magistrate, Delhi for recording the statements of two accused, namely, Md. Ayub Khan and Kashmiri Khan under Section 164 of the Code of Criminal Procedure. On the same day statements of both the persons were recorded under Section 164 of the Code of Criminal Procedure. 4. Thereafter it was informed by the CBI to the Special Magistrate at Dhanbad through a petition rather a rejoinder filed on 13.10.2006 that statements of the two accused persons recorded under Section 164 of the Code of Criminal Procedure by the Metropolitan Magistrate, Delhi shall be forwarded to the Court directly but subsequently opposite party No. 2 (Investigating Officer) filed an application along with three sealed envelopes stating therein that the statements of the accused Md. Ayub Khan and Kashmiri Khan and one witness Dr. Ayub Khan and Kashmiri Khan and one witness Dr. D. Mishra recorded under Section 164 of the Code of Criminal Procedure obtained from the Chief Metropolitan Magistrate, Delhi are being filed. Thereupon, on being applied, certified copy of the statement made under Section 164 of the Code of Criminal Procedure by Kashmiri Khan was supplied which has been annexed as Annexure 2. 5. Subsequently, when the copy of the Statement made under Section 164 of the Code of Criminal Procedure by Kashmiri Khan was supplied in terms of the provisions of Section 207 of the Code of Criminal Procedure along with other police papers it was noted that some forgery has been done in the statement made under Section 164 of the Code of Criminal Procedure by Kashmiri Khan. In this regard it was explained that in the certificate portion of the statement of Kashmiri Khan the name of the accused was noted as Md. Ayub Khan which would be evident from Annexure 2 whereas in other copy of the same statement of Kashmiri Khan (Annexure 5) supplied in terms of Section 207 of the Code of Criminal Procedure the words Md. Ayub Khan were penned through and in that place Kashmiri Khan was substituted and this fact conclusively go to show that some forgery has been made but it is strange enough that the Court below rejected the prayer for holding enquiry in terms of Section 340 on the ground that documents in which alleged forgery was made was not in the custody of the Court rather document, i.e., statement made under Section 164 of the Code of Criminal Procedure by Kashmiri Khan was supplied by the CBI to the defence side though police papers are being supplied by the Court after the submission of the charge-sheet and in fact those documents were supplied to the accused persons by the Court and, therefore, it is absolutely wrong on the part of the Court to say that the documents were supplied to the accused by the CBI and hence the impugned order needs to be set aside as it was incumbent upon the Magistrate to hold enquiry when it appears that an offence referred to in Clause (b) of Sub- section (1) of Section 195 have been committed in relation to proceeding or in respect to the documents produced in the Court. 6. 6. As against this learned Counsel appearing for the CBI submits that on 13.9.2006 learned Metropolitan Magistrate, Delhi recorded the statements of two accused persons, namely, Kashmiri Khan and Md. Ayub Khan and it would appear from the certificate portion of the statement of Md. Ayub Khan which has been filed in this case, name of Md. Ayub Khan is there but in the certificate portion of the statement of Kashmiri Khan his name was wrongly recorded as Md. Ayub Khan due to typographical error which would be evidently clear from the fact that the signatures of Kashmiri Khan do appear in his statement on the first page and the last page and similarly signatures of Md. Ayub Khan do appear over the statement made by him. 7. It was further pointed out that after the statements were recorded it were sealed and the sealed cover of the statements were handed over to the opposite party No. 2 i.e. Investigating Officer of this case and at the same time as per the practice unsealed copy of the statement was also given to the Investigating Officer for the purpose of taking up further investigation and also for the record of CBI and this unsealed copy given to the Investigating Officer bears the correction which had been corrected by learned Metropolitan Magistrate himself by his own pen and those sealed covers handed over to the Investigating Officer were submitted before the learned Magistrate, CBI, Dhanbad, certified copy of which was obtained by the accused and naturally it was uncorrected copy of the statement and when corrected copy of the statement was supplied along with other police paper, the petitioner has made an issue as if CBI has committed a grave offence though admittedly signatures of Kashmiri Khan are there on his statement recorded under Section 164 of the Code of Criminal Procedure and except the correction made in the name no manipulation or alteration has been made on the material parts of the statement and thus, no offence of forgery ever seems to have been committed and, therefore, the Court below has rightly rejected the prayer by the impugned order which needs not to be interfered with by this Court. 8. 8. Having heard learned Counsel appearing for the parties and on perusal of the pleadings as well as the documents annexed therewith satisfactory explanation on the part of the CBI seems to have come forth indicating under what circumstances name of Ayub Khan appearing in Annexure 5 has been penned through and the name of Kashmiri Khan has been substituted and, therefore, it never calls for any enquiry in terms of Section 340 of the Code of Criminal Procedure. Otherwise also it is not the case for undertaking enquiry in terms of Section 340 which reads as under: 340. 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 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. 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. The aforesaid provision sufficiently indicates that the Court making the complaint have to be satisfied first that it appears that an offence under Clause (b) of Section 195(1) has been committed and secondly that it is expedient in the interest of justice that an enquiry should be made into such offence. Therefore, if in the opinion of the Court either of this element is absent no prosecution can be launched. 10. In my view, in the facts and circumstances both the elements seem to be absent in this case. Coming to the first element, I may reiterate that the petitioner has sought enquiry in terms of Section 340 of the Code of Criminal Procedure as according to the petitioner some forgery has been made on the document as aforesaid but the question is as to whether offence of forgery is made out. Forgery has been defined under Section 463 of the Code of Criminal Procedure which reads as follows: 463. Non-compliance with provisions of Section 164 or Section 281.-(1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non- compliance, and may, if satisfied that such non-compliance has not Injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of appeal, reference and revision. 11. From bare perusal of the aforesaid provision it appears that if a false document is made fraudulently or dishonestly with an intent to commit fraud then one can be said to have committed offence of forgery. 12. (2) The provisions of this section apply to Courts of appeal, reference and revision. 11. From bare perusal of the aforesaid provision it appears that if a false document is made fraudulently or dishonestly with an intent to commit fraud then one can be said to have committed offence of forgery. 12. Under the circumstances as has been dealt above, one cannot be said to have made forgery by making correction or as per petitioner manipulation in Annexure 5 as such correction never seems to have been made for playing fraud upon any one nor the said correction can be said to have been made dishonestly or fraudulently as by such correction no injury or damage is being caused to any one. Thus, I do find that neither any offence as referred to under Clause (b) of Section 195(1) of the Code of Criminal Procedure is made out nor under the circumstances it is expedient in the interest of justice to hold enquiry. 13. In the circumstances, I do not find any illegality in the order impugned. Accordingly, this application stands dismissed.