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Allahabad High Court · body

2010 DIGILAW 2628 (ALL)

SURYA NATH SINGH v. STATE OF U. P.

2010-08-28

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the applicants and learned A.G.A. for the respondent and perused the record. 2. With the consent of the learned counsel for the parties, the petition is finally disposed of. 3. This petition under Section 482 of the Code of Criminal Procedure (in short ‘Code’) has been filed against the order dated 4.6.2010 passed by Judicial Magistrate, Mau in Case No. 504 of 2005, (Ramakant Pandey v. Surya Nath Singh and others) whereby the applicants have been summoned as accused. 4. It appears that the Additional Commissioner, Azamgarh Division Azamgarh while disposing of Revision No. 870/120M (Ram Badan v. Surya Nath Singh) under Section 219 of the Uttar Pradesh Land Revenue Act, found that the revenue record entry in favour of the applicant No. 1 in respect of Plot Nos. 1297 and 1333 of village Tajopur, Pargana and Tehsil Sadar, District Mau was a forged entry and accordingly allowed the revision and directed that the aforesaid plots be recorded as Banzar in the revenue record. Against the order of the Additional Commissioner, the petitioner No. 1 filed Civil Misc. Writ Petition No. 51950 of 2003 in this Court, which was finally disposed of with the direction that the matter may be taken before the regular Court for declaration of title. It further appears that the Additional Commissioner filed a complaint in the Court of Chief Judicial Magistrate, Mau against the applicants with the allegations that the applicants were responsible for the forged entry in the revenue record and prayed that they may be punished in accordance with law. The learned Additional Commissioner appears to have filed the complaint under Section 340 of the Code. Ultimately, the complaint was put up before the Judicial Magistrate, Mau and the applicants filed a written objection against the maintainability of the complaint mainly on the ground that the Additional Commissioner had not held any inquiry under Section 340 of the Code., therefore, the complaint was not maintainable but the Judicial Magistrate rejected the objection and directed for issue of processes against the applicants. 5. The learned counsel for the applicants submitted that the Additional Commissioner filed the complaint without holding an inquiry as contemplated by Section 340 of the Code, therefore, the complaint was not maintainable and the learned Magistrate was not competent to take cognizance on such complaint. 6. 5. The learned counsel for the applicants submitted that the Additional Commissioner filed the complaint without holding an inquiry as contemplated by Section 340 of the Code, therefore, the complaint was not maintainable and the learned Magistrate was not competent to take cognizance on such complaint. 6. The learned A.G.A., on the other hand submitted that the alleged forgery was committed in the revenue record outside the proceeding of the matter decided by the learned Additional Commissioner, therefore, Section 340 of the Code was not attracted. 7. The sole question which arises for consideration in this case is whether the complaint was not maintainable without the inquiry under Section 340 of the Code. Section 340 of the Code reads as follows : “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) 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 opinion; (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, “Court” has the same meaning as in Section 195.” 8. A perusal of the aforesaid excerpts of Section 340 of the Code reveals that an inquiry under Section 340 of the Code is required to be made only when any offence referred to in clause (b) of sub-section(1) of Section 195 is alleged to have committed in or in relation to a proceeding of the concerned Court or in respect of a document produced or given in a evidence in a proceeding in that Court. In other words, Section 340 of the Code prescribes the procedure as to how a complaint may be filed in regard to the offences referred to in Section 195(1)(b) of the Code. 9. Section 195 of the Code deals with the prosecution for contempt of lawful authority of Public Servants, for offences against public justice and for offences relating to documents given in evidence. Section 195(1)(b) of the Code may be reproduced as follows : “(1)No Court shall take cognizance, - (a) (i).............................. (ii)............................. (iii)............................ (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, 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 a 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 by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2)............................ (3)........................... (4)..........................” 10. (2)............................ (3)........................... (4)..........................” 10. Therefore, Section 195 (1)(b) refers to two different category of the offences. The first category of the offences are punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 I.P.C. The second category of the offences are the offences described in Section 463 I.P.C. or punishable under Sections 471, 475 and 476 I.P.C. In the first category of offences Section 195 of the Code is attracted only when if any of such offences is alleged to have been committed in or in relation to any proceeding in any Court whereas in regard to the second category of the offences Section 195 is applicable when any of such offences is committed in respect of a document produced or given in evidence in a proceeding in a Court. In the cases of conspiracy to commit, or an attempt to commit, or the abatement of, any of the aforesaid both the category of offences also, the provisions of Section 195 are applicable. In all such type of cases, the cognizance of the offences can be taken only on the complaint in writing of the Court concerned or of any authorised officer of the Court or of the Court to which the Court concerned is subordinate and not otherwise. Before lodging of a complaint as required by Section 195 of the Code, it is also necessary to hold an inquiry under Section 340 of the Code. 11. In the case of Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493 , the Apex Court held that the bar contained in Section 195(1)(b)(ii) of the Code would not apply where forgery of a document was committed before the document was produced in the Court. However, a contrary view was expressed in the case of Surjit Singh v. Balbir Singh, (1996) 3 SCC 533 . In order to reconcile the verdicts given in the said two decisions and to propound a correct law on the subject, a Constitution Bench of the Apex Court reconsidered the matter in the case of Iqbal Marwah and another v. Meenakshi Marwah and another, (2005) 4 SCC 370 and propounded the following principles : “The scheme of the statutory provision may now be examined. Broadly, Section 195, Cr.P.C. 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 authorised 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. 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, Cr.P.C. 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.” 12. The aforesaid principles have been reiterated in the case of Mahesh Chandra Sharma v. State of U.P., AIR 2010 SC 812 . In that case, the Apex Court has held in paras 28, 29 and 30 as follows : 28. “Learned Single Judge completely lost sight of the fact that the offence committed by accused in collusion with Area Lkhpal was not in relation to Court proceedings. It was in any case behind the back of the appellant and as soon as he came to know with regard to the illegal designs of the accused he lodged a complaint under Section 156(3) of the Cr.P.C. 29. The law on the point is too well settled in the light of the abovesaid two judgments of this Court that Section 195(1)(b)(ii) of the Cr.P.C. contemplates a situation where offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court. 30. The learned Single Judge further committed a gross error in resorting to Section 340 of the Cr.P.C. as provisions of the said section can be invoked only when it is established that offence of forgery had already been committed. In any case, accused had miserably failed for grant of any relief under Section 482 of the Cr.P.C. The limit of exercising jurisdiction conferred on the Court under Section 482 of the Cr.P.C. is well defined and by no stretch of imagination, it could be said that petition filed by accused under Section 482 of the Cr.P.C. had fulfilled the requirement as contemplated in this Section.” 13. It is, thus, well settled that if any of the offences referred to in Section 195 (1)(b) (ii) of the Code is committed in respect of a document before the document is produced or given in evidence in a proceeding in any Court, the provisions of Section 195 would not be attracted. In that eventuality, it will not be necessary to hold an inquiry under Section 340 of the Code for filing the Court complaint. But the position is different if such offence is committed after production of the document in evidence in the Court. In that eventuality, it will not be necessary to hold an inquiry under Section 340 of the Code for filing the Court complaint. But the position is different if such offence is committed after production of the document in evidence in the Court. In that situation the Court complaint as required by Section 195 of the Code would be necessary for taking cognizance and it would also be necessary to hold the inquiry under Section 340 of the Code before filing the complaint. 14. In the present case, the alleged forgery in the revenue record was committed outside the Court much prior to the initiation of the proceeding in the Additional Commissioner’s Court and it is nowhere stated that any forgery was committed in or in relation to the judicial proceeding pending in the Court of learned Additional Commissioner or in respect of a document filed in that proceeding. Therefore, the provisions of Section 340 of the Code. are not attracted in this case and as such no inquiry was required under Section 340 of the Code before filing the complaint. 15. The complaint filed by learned Additional Commissioner, in view of the aforesaid reasons, is nothing except an ordinary complaint under Section 190(1)(a) of the Code. Therefore, the learned Magistrate was legally required to observe the procedures laid down in Chapter XV of the Code. But in this case no such procedure has been adopted and summoning order has been passed treating the complaint under Section 343 of the Code. Therefore, the summoning order cannot be upheld. 16. The petition is allowed. The impugned order dated 4.6.2010 and all consequential proceedings done in pursuance of the impugned order are quashed. 17. The learned Magistrate is directed to proceed with the complaint in accordance with Chapter XV of the Code and pass an appropriate order in accordance with law. ————