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Gauhati High Court · body

2009 DIGILAW 47 (GAU)

Runu Devi v. State of Assam

2009-01-21

I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. By making this application, under Section 482, Cr.PC, the petitioner has put to challenge the sustainability of the First Information Report ('FIR'), which has led to registration of Jorhat Police Station Case No. 417/2008, under Sections 471/420 IPC, against the petitioner, as accused. 2. I have heard Mr. R.D. Lall, learned Counsel for the accused-petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 3. The case, as made out against the accused-petitioner, in the FIR, is, in brief, thus: While GR Case No. 647/2007 was pending in the court of the Chief Judicial Magistrate, Jorhat, a petition was allegedly filed, on 16.7.2008, by the present petitioner informing the court that the petitioner's son, Tridip Barkataky, who was an accused in the said case, had died. Along with her said petition, the petitioner is also alleged to have submitted a photostat of death certificate as regards the death of her said son, the certificate having been shown to have been issued by Gauhati Medical College Hospital. By making the said petition, the petitioner allegedly prayed for closing the said case against her son, accused Tridip Barkataky. The learned Chief Judicial Magistrate did not, however, act upon the said petition and, instead, issued a non-bailable warrant of arrest against accused, Tridip Barkataky, whereupon the said accused was arrested and produced in the court of the Chief Judicial Magistrate. Satisfied that the petitioner has forged the death certificate and also committed offence of cheating, the Chief Judicial Magistrate, Jorhat, as informant, lodged the FIR, which has led to the registration of the case against the accused-petitioner and it is this FIR and the investigation, following the registration of the FIR, which stand impugned in this petition for quashing. 4. The registration of the FIR under Sections 471 and 420, IPC has been challenged on two grounds. 4. The registration of the FIR under Sections 471 and 420, IPC has been challenged on two grounds. The first ground of challenge is this : In the present case, the forgery, if any, was committed in respect of a death certificate, which had been filed in a criminal proceeding in a court and, hence, the police is not competent to register a case in respect of such a forged document nor is it permissible for the police to carry on investigation on the basis of such FIR, because Section 195(1)(b)(ii) of the Code of Criminal Procedure ('the Code') bars a court from taking cognizance of any offence punishable under Section 471, IPC, when such offence is committed in respect of a document produced or given in evidence in a proceeding in any court unless the complaint is, in writing, of that court, where the forgery was committed, or some other court to which the court, where the forgery was committed, is subordinate. 5. In the present case, it contended that even if the police, on completion of investigation, submits charge sheet against the accused-petitioner for his prosecution under Section 471, IPC, no court would be able to take cognizance of the offence under Section 471, IPC inasmuch as taking of such cognizance would be barred, under Section 195(1)(b)(ii) of the Code, in the absence of any complaint, in writing, of the court, wherein the forged document was produced or given in evidence. The second ground of attack is that even if the contents of the FIR are assumed to be true, the same do not disclose commission of any offence within the meaning of Section 420, IPC and, at best, the allegations, made in the FIR, constitute an offence under Section 417, IPC. 6. As the registration of a case, against the accused-petitioner, under Section 471, IPC, on the basis of the said FIR, is under challenge, in this criminal petition, on the ground that Section 195(1)(b)(ii) of the Code does not permit registration of such a case, it is necessary to take note of the provisions of Section 195. This section (Section 195) is, therefore, reproduced hereinbelow: 195. This section (Section 195) is, therefore, reproduced hereinbelow: 195. 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) (i) of any offence punishable under Sections 171 to 188(both inclusive) of the Indian Penal Code (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 administratively subordinate; (b) (i) of any offence punishable under any of the following Sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 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 Sub-clause (ii), except on the complaint in writing of that court, or some other court to which that court is subordinate. 7. In the light of the rival submissions, made before this Court, when the provisions of Section 195 of the Code are considered, what becomes transparent is that the real controversy, in the present revision, revolves around the interpretation of 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", which occurs in Section 195(1)(b)(ii). 8. In Surjit Singh v. Balbir Singh (1996) 3 SCC 533 , the Apex Court had held to the effect that once a document is produced or given in evidence, in a court, taking of cognizance on the basis of a private complaint of forgery having been committed in respect of such a document is completely barred. 8. In Surjit Singh v. Balbir Singh (1996) 3 SCC 533 , the Apex Court had held to the effect that once a document is produced or given in evidence, in a court, taking of cognizance on the basis of a private complaint of forgery having been committed in respect of such a document is completely barred. In other words, irrespective of the fact as to whether a forgery in respect of a document is committed before or after the document is introduced in evidence, the bar created by Sections 195(1)(b)(ii) gets attracted. However, in a subsequent case, namely, Sachida Nand Singh v. State of Bihar (1998) 2 SCC 493 , the Apex Court took the view that the bar, contained in Section 195(1)(b)(ii), would not apply, when forgery in respect of a document was committed before the document had been produced in the court or introduced in evidence. The relevant observations, made in Sachida Nand Singh (supra), read as under: 6. In Sachid Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the court recorded its conclusions in paras 11, 12 and 23, which are being reproduced below: 11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code 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. In other words, the offence should have been committed during the time when the document was in custodia legis. 12. It would be a 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, * * * 23. The sequitur of the above discussion is 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. 9. The sequitur of the above discussion is 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. 9. The controversy, thus, raised is as to whether the bar under Section 195(1)(b)(ii) applies to cases, where forgery of a document is committed before the same is produced in the court or Section 195(1)(b)(ii) is attracted only when such forgery is committed after the document has already been produced in the court. This controversy has been authoritatively resolved by a Constitution Bench in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. (2005) 4 SCC 370 , wherein, concurring with the views, expressed in Sachida Nand Singh (supra), the Constitution Bench held that the bar, under Section 195(1)(b)(ii), would be attracted only when the offences enumerated therein 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., when the document was in custodia legis. The relevant observations made, in this regard, read as under: 33. In view of the discussion made above, we are of the opinion that Sachida 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. 10. In the light of the authoritative pronouncement in Iqbal Singh Marwah (supra), there can be no escape from the conclusion that when a document is forged and, then, produced in a court, the complaint, as regards the offence of forgery, can be lodged by anyone and no formal complaint by the court, where the forged document is filed or introduced, is necessary. A complaint by a court is necessary only when forgery in respect of a document is committed after the document has already been produced in the court or introduced in evidence. 11. A complaint by a court is necessary only when forgery in respect of a document is committed after the document has already been produced in the court or introduced in evidence. 11. Section 190 of the Code empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts, which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person, other than a police officer, or upon his own knowledge, that such offence has been committed. 12. Section 195 is one of the exceptions to the general provisions of Section 190 inasmuch as Section 195 creates an embargo upon the Magistrate's power to take cognizance of certain specified offences. The procedure for filing of a complaint by a court, contemplated by Section 195(1)(b)(ii), is given in Section 340 of the Code. This section reads: 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 interests 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 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) bring 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 Section195. 13. 13. If the provisions of Section 340 of the Code are carefully analyzed, it becomes clear that the court is not bound to make a complaint as regards commission of an offence referred to in Section 195(1)(b)(ii), for, the court has to be of the view that it is expedient in the interest of justice to make the complaint. The court, in Iqbal Singh Marwah (supra), has held that the language of Section340 shows that a Magistrate will lodge a complaint only if the interest of justice requires and not in every case. Before filing the complaint, observes the Apex Court, in Iqbal Singh Marwah (supra), the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b)(ii) and that this expediency will, normally, be judged by the court by weighing not the magnitude of the injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, which the commission of offence may have upon administration of justice. 14. In the backdrop of the position of law as discussed above, when I turn to the facts of the present case, what becomes glaringly noticeable is that in the present case, the death certificate was allegedly forged before the same was introduced into the proceeding of the learned court below. In such circumstances, when the death certificate already stood forged before the 195(1)(b)(ii), does not get attracted. Hence, there is no legal limitation on the power of the police to register, on the basis of the said complaint, a case, against the accused-petitioner under Section 471, IPC by treating the said complaint as FIR and investigate the case. 15. Turning to the question as to whether the FIR discloses commission of an offence within the meaning of Section 420, IPC, it needs to be pointed out that it is Section 415, IPC, which defines offence of cheating. Offence of cheating is punishable under Section 417, IPC; but when the offence of cheating is, inter alia, accompanied by delivery of property, the offence becomes punishable under Section 420, IPC. 16. Reverting to Section 417, IPC, it needs to be noted that Section 417, IPC makes punishable offence of cheating, Cheating has been defined in Section 415, IPC. Offence of cheating is punishable under Section 417, IPC; but when the offence of cheating is, inter alia, accompanied by delivery of property, the offence becomes punishable under Section 420, IPC. 16. Reverting to Section 417, IPC, it needs to be noted that Section 417, IPC makes punishable offence of cheating, Cheating has been defined in Section 415, IPC. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of a person is common to the second and third requirements of the provisions of Section 415. The ingredients, as pointed out under (i) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence. See Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15 . 17. Section 420, IPC stands attracted only when the cheating is accompanied by delivery of property or when a person induces a person deceived to make, alter or destroy the whole or any part of a valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security; hence, the offence of cheating punishable under Section 420 does not come into play if no property or valuable security is involved. In other words, the difference 417, IPC and 420, IPC is this: where, in pursuance of the deception, no property passes or no alteration is made in a valuable security, no valuable security is destroyed or when nothing, which is signed or sealed, capable of being converted into a valuable security, is altered or destroyed, the offence is one of cheating punishable under Section 417, IPC. However, where, in pursuance of the deception, property is delivered or any alteration or destruction of any valuable security takes place or where anything, which is signed or sealed and capable of being converted into a valuable security, is altered or destroyed, the offence is one of cheating punishable under Section 420, IPC. In the present case, the accused-petitioner cannot be said to have induced the presiding officer of the court, in question, to part with any property or to make, alter or destroy the whole or any part of a valuable security or anything, which is signed or sealed, and which is capable of being converted into a valuable security. Viewed thus, it is clear that while the FIR discloses commission of an offence under Sections 417, IPC and 471, IPCs, the FIR cannot be said to have necessary ingredients for registering a case against the petitioner as accused under Section 420, IPC. 18. What crystallizes from the above discussion is this: While the FIR, for the reasons assigned above and also its registration, under Section 471, IPC, cannot be quashed, the investigating agency is hereby directed to correct the penal provisions of cheating by replacing Section 420, IPC by Section417, IPC. 19. With the above observations and directions, this criminal petition shall stand disposed of.