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Madras High Court · body

2009 DIGILAW 2198 (MAD)

Gurusamy v. Chinnappa Gounder & Others

2009-07-08

G.RAJASURIA

body2009
Judgment : Animadverting upon the order dated 20.12.2006 passed by the learned Principal Sessions Judge, Erode in Crl.R.P. No. 96 of 2006 in reversing the order dated 38. 2006 passed by the learned Judicial Magistrate, Bhavani in Crl.M.P. No. 4931 of 2006 in C.C. No. 130 of 2006, this criminal revision petition is focused. 2. The long and short of the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision petition would run thus: (i) The police registered a case in Crime No. 373 of 2005 on a compliant having been referred to it under Section 156(3) of the Code of Criminal Procedure as against the accused for the offences under Sections 467, 471 and 193 IPC. After investigating the matter, the police laid the police report in terms of Section 173 of the Code of Criminal Procedure. (ii) Ultimately, the Court framed the charges as against the accused. At the time of framing charges, the accused filed Crl.M.P. No. 4931 of 2006 for discharging the accused. Whereupon after hearing both sides, the learned Magistrate dismissed the said application. (iii) Being aggrieved by and dissatisfied with the said dismissal of the discharge petition, criminal revision was filed in CRPNo.96 of 2006 before the learned Principal Sessions Judge, Erode, which reversed the order of the lower Court and allowed the Criminal Miscellaneous Petition and discharged the accused. (iv) Challenging and impugning the said order of the learned Principal Sessions Judge, Erode in CRP No. 96 of 2006, this revision is focused by the de facto complainant on various grounds, the warp and woof of them would run thus: The Principal Sessions Court wrongly applied the law; more specifically it misinterpreted Section 195 (b) (ii) of the Code of Criminal Procedure and passed such an order. As such, there is perversity in applying the correct provision of law and in deciding the matter. 3. Heard the learned counsel appearing on both sides. 4. The learned counsel for the revision petitioner by reiterating the grounds of revision would develop his argument to the effect that it is a settled proposition of law that in respect of forged documents, which were prepared outside the Court and presented in the course of judicial proceedings, the question of Section 195 of the Code of Criminal Procedure would not come into operation. 5. 5. The learned counsel appearing for the respondents would argue in support of the order passed by the learned Principal Sessions Judge and high light that absolutely there is nothing to find fault with it. 6. At this juncture, I would like to recollect and call-up the following decision of the Hon’ble Apex Court Iqbal Singh Marwah and another v. Meenakshi Marwah and another AIR 2005 SC 2119 : (2005) SCC (Cr) 1101 : (2005) 4 SCC 370 : (2005) MLJ (Crl) 579. Certain excerpts from it would run thus at pp. 584, 589, 590, 592 and 593 of MLJ (Crl): “9. The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr PC deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is _ “Of Contempts of the Lawful Authority of Public Servants.” These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as _ “Of False Evidence and Offences Against Public Justice”. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a Court of Justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a Court of justice, the expression “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” occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court. 18. In view of the language used in Section 340 CrPC the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words “Court is of opinion that it” is expedient in the interests if justice.” This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, when voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider expedient in the interest of justice to make complaint. The broad view of clause (b)(ii) as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded. 20. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue Court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 21. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. Such an interpretation would be highly detrimental to the interest of the society at large. 21. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation By Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner: “The Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong.” 24. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras (1954) 1 MLJ 699 give a complete answer to the problem posed: “15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. 16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the vents are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just for example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.” 25. In view of the discussion made above, we are of the opinion that Sachid Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195 (1)(b)(ii) Cr PC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. 26. In the present case, the Will has been produced in the Court subsequently. 26. In the present case, the Will has been produced in the Court subsequently. It is nobody’s case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr PC would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.” A bare perusal of it would demonstrate and exemplify that it is not necessary that in order to file a criminal complaint, relating to a forged document produced in Court, there should be finding by the Civil Court or the Civil Court itself should exercise its power under Section 195 of the Code of Criminal Procedure to initiate criminal proceedings. Much water has flown under the bridge. But the learned Principal sessions Judge, failed to take note of the change in the law relating to filing of complaint by a party to a civil litigation in criminal Court concerning forged document produced in Court by the opponent. 7. It is a trite proposition that simply because a civil case is pending, criminal proceedings need not be stayed or deferred. 8. In view of the above proposition of law it is crystal clear, that the learned Principal Sessions Judge, misunderstood the entire matter and simply discharged the accused. 9. I also would like to point out the role of the Court at the time of framing charges. An excerpt from the decision of the Hon’ble Apex Court Sanghi Brothers (Indore) Private Limited v. Sanjay Choudhry and Others (2009) 1 SCC (Crl) 87 : (2008) 3 MLJ (Crl) 1560 would run thus: “10. In State of Maharashtra v. Som Nath Thapa this Court observed as follows: “31. Let us note the meaning of the word ‘presume’. In BLACK’S LAW DICTIONARY it has been defined to mean ‘to believe or accept upon probable evidence’. In SHORTER OXFORD ENGLISH DICTIONARY it has been mentioned that in law ‘presume’ means to take as proved until evidence to the contrary is forthcoming’. Let us note the meaning of the word ‘presume’. In BLACK’S LAW DICTIONARY it has been defined to mean ‘to believe or accept upon probable evidence’. In SHORTER OXFORD ENGLISH DICTIONARY it has been mentioned that in law ‘presume’ means to take as proved until evidence to the contrary is forthcoming’. STROUD’S LEGAL DICTIONARY has quoted in this context a certain judgment according, to which ‘a presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged’. In LAW LEXICON by P. RAMANATHA AIYAR the same quotation finds place at p. 1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 11. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy it was noted that at the stage of framing the charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused, (underlined for emphasis) the Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virothi Parishad v. Dilip Nathumal Chordia and State of W.B. v. Mohd. Khalid.) 12. In R.S. Nayak v. A.R. Antulay (supra) this Court referred to Sections 227 and 228 so far as they are relatable to trial. Sections 239 and 240 are relatable to trial of warrant cases and Sections 245(1) and (2) are relatable to summons cases. 13. Khalid.) 12. In R.S. Nayak v. A.R. Antulay (supra) this Court referred to Sections 227 and 228 so far as they are relatable to trial. Sections 239 and 240 are relatable to trial of warrant cases and Sections 245(1) and (2) are relatable to summons cases. 13. After analyzing the terminology used in the three pairs of Sections it was held in R.S. Nayak v. A.R. Antulay (supra) that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case is to be applied.” There are now catena of decisions relating to the aforesaid point. A perusal of those precedents would highlight and spotlight that at the time of framing charges, the learned trial Judge is not expected to embark on a broad based rowing enquiry and probe into the matter and find out as to whether ultimately, the case I would end in acquittal or conviction. Only prima facie case has to be seen. 10. In this case, it is the specific plea of the complainant that the accused forged the Will and over and above that the complainant stand is having the back up of the Civil Court’s finding. Even though the Civil Court’s finding has not attained finality in view of appeal allegedly filed or pending or so, nonetheless, the complaint is not barred as independent of civil proceedings, the criminal process can be set in motion. As such the order of the learned Principal Sessions Judge, Erode warrants interference, as it has been passed due to non-application of the correct provision of law. Accordingly, the order dated 20.12.2006 passed by the learned Principal Sessions Judge, Erode in Crl. R.P. No. 96 of 2006 is set aside and the order of the learned Judicial Magistrate, Bhavani passed in Crl. M.P. No. 4931 of 2006 is restored.