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2010 DIGILAW 541 (GAU)

Shahab Uddin Mazumdar v. State of Assam

2010-08-05

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. By filing this petition under section 482, Cr.PC, the petitioners have prayed for quashing of the FIR on the basis of Algapur P.S. Case No. 278/09 (corresponding to G.R. Case No. 1202/09) under section 108/120(B)/468/34, IPC. 2. Heard Mr. N. Dhar, learned counsel for the petitioners and Mr. F.U. Borbhuiyan, learned counsel appearing for the respondent No. 2 as well as Mr. Gogoi, learned Addl. Public Prosecutor for the State/respondent. 3. The necessary facts, in brief, for disposal of this criminal petition are as follows -- The complainant being the wife of the petitioner No. 1 alleging nonpayment of maintenance allowance, she instituted a proceeding under section 125, Cr.PC in the court of the learned CJM, Hailakandi which was registered as 1280c/2009. The aforesaid case was filed on 26.3.2009. The petitioner/husband being served with notice of the proceeding appeared in the case and submitted his written statement on 16.10.2009. In the written statement it is alleged that there was a conciliation proceeding relating to the matrimonial dispute between the parties held on 14.6.2009 pursuance to which a deed of relinquishment "Salishnama", etc., was executed by the respondent/wife on 14.6.2009, according to which the petitioner/husband pronounced talak and the respondent/wife was paid Rs. 1,01,000 in cash as the unpaid dower, maintenance for the iddat period, future maintenance and for gifted articles etc. And accordingly the respondent/wife is not entitled to get any maintenance allowance. 4. Upon perusal of the aforesaid written statement filed by the respondent/petitioner, the petitioner filed a complainant case in the court of the learned Judicial Magistrate, Hailakandi which was registered as C.R. Case No. 1280c/09. The aforesaid C.R. Case was forwarded by the learned Magistrate for necessary investigation under the provision of section 156(3), Cr.PC. Thereafter Algapur P.S. Case No.278/09 under section 108/120(B)/468/34, IPC was registered by police. On the next date of filing of the complaint Case before the Magistrate the petitioner also instituted Title Suit No. 142/09 in the Court of the Munsiff No. 1, Hailakandi on 17.12.2009. In the aforesaid Title Suit the petitioner prayed for a declaration that the respondent/wife was legally divorced by the petitioner and also paid maintenance allowance as required under the law. 5. Upon registration of the case police having started investigation the petitioner has approached this court by filing this petition for quashing the FIR. 6. Mr. In the aforesaid Title Suit the petitioner prayed for a declaration that the respondent/wife was legally divorced by the petitioner and also paid maintenance allowance as required under the law. 5. Upon registration of the case police having started investigation the petitioner has approached this court by filing this petition for quashing the FIR. 6. Mr. N. Dhar, learned counsel for the petitioner referring to section 340 of the Cr.PC, submits that since the allegation of elation of false and fabricated documents is made in connection with the proceeding pending before the CJM, Hailakandi, the necessary complaint regarding commission of such forgery, if any, is to be made only on the basis of the complaint made by the court and the respondent/wife has no authority to make any complaint in this regard. It is contended by Mr. Dhar that in view of the above facts situation, the present case attracts section 340 of the Cr.PC. The offence alleged is punishable under section 195 of the IPC. Accordingly, continuation of the proceeding is an abuse of the process of law and accordingly the proceeding should be quashed. In support of his contention Mr. Dhar has referred to the decision of the Apex Court reported in State of Haryana and Ors. v. Bhajanlal and Ors., 1992 Supp (1) SCC 335. 7. Refuting the contention of Mr. Dhar, Mr. Borbhuiyan appearing for the respondent/wife submits that on proper interpretation of section 340 of the Cr.PC, the submission made on behalf of the petitioner cannot be accepted and accordingly the provision of section 340 of the Cr.PC is not attracted in the instant case, inasmuch as, forgery/fabrication of document was committed at a time prior to the institution of the proceeding before the learned Magistrate. In support of this contention Mr. Borbhuiyan has referred to the following decisions of the Apex Court reported in (1) Iqbal Singh Marwa v. Meenakshi Marwah, (2005) (4) SCC 370 and (2) Mahesh Ch. Sarma v. State of Uttar Pradesh and Ors., (2009) 15 SCC 519 . 8. I have given my anxious consideration to the submissions made by the learned counsel for the parties. Borbhuiyan has referred to the following decisions of the Apex Court reported in (1) Iqbal Singh Marwa v. Meenakshi Marwah, (2005) (4) SCC 370 and (2) Mahesh Ch. Sarma v. State of Uttar Pradesh and Ors., (2009) 15 SCC 519 . 8. I have given my anxious consideration to the submissions made by the learned counsel for the parties. The crux of the matter for decision in the instant case is as to whether the facts and circumstances of the case attracts the provision of section 340 of the Cr.PC and the allegation levelled by tho respondent-wife in the FIR on the basis of the facts as indicated above it is necessary to go through the submissions made by the learned counsel as to the applicability of section 340 of the Cr.PC. For ready reference section 340 of the Cr.PC is quoted herein below : 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 section195, 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 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. Section 195 of the Cr.PC provides for punishment by fabricating false evidence with intent to procure conviction of offence punishable for life imprisonment. Fabricating false evidence is defined under section 192, IPC and punishment thereof is provided under section 193, IPC. Section 194provides punishment for giving or fabricating false evidence with intent to procure conviction of capital offence. The extended part of the offence under section 192, IPC interpreting section 315the Apex Court in the case of Sachida Nand Singh and another v. State of Bihar and another, (1998) 2 SCC 493 has held as follows : 6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in section 463 or any other offence punishable under sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference ? The aforesaid case was approved in Mahesh Ch. Sarma (supra). The Apex Court interpreting section 195 at paragraph 7 of the judgment in the case of Iqbal Singh Marwa (supra) has held as follows -- 7. On a plain reading clause (b)(ii) of sub-section (1) of section 195 is capable of two interpretations. The aforesaid case was approved in Mahesh Ch. Sarma (supra). The Apex Court interpreting section 195 at paragraph 7 of the judgment in the case of Iqbal Singh Marwa (supra) has held as follows -- 7. On a plain reading clause (b)(ii) of sub-section (1) of section 195 is capable of two interpretations. One possible interpretation is that when an offence described in section 463 or punishable under section 471, section 175or section 476 is alleged to have been committed in respect of a document which is subsequently produced or given in evidence in a proceeding in any court, a complaint by the court would be necessary. The other possible interpretation is that when a document has been produced or given in evidence in a proceeding in any court and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the court would be necessary. On this interpretation if the offence as described in the section is committed prior to production or giving in evidence of the document in court, no complaint by court would be necessary and a private complaint would be maintainable. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved. Again in para 10 of the aforesaid case the Apex Court has further held as follows - 10. 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 Contempt of the Lawful authority or 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". 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 of 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 earner 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.PC. 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. From the aforesaid interpretation of section 340, Cr.PC and section 195 we find that in order to attract the provisions, the allegation of commission of offence punishable under section471/475/476, IPC should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. As held in the case of Iqbal Singh (supra) that one of the interpretations of section 195of the Cr.PC is that when a document has been produced or given in evidence in a proceeding in any court and thereafter an offence is alleged to be committed in respect thereof, a complaint by the court is necessary and if the offence as described in section is committed prior to the production or giving evidence of the document in court, no complaint by the court would be necessary and a private complaint would be maintainable. In the instant case offence alleged is committed prior to the production of the document which was done only on 16.10.2009. 10. In view of the aforesaid interpretation of section 195 of the Cr.PC the submissions so made by Mr. Dhar to the effect that no FIR lodged at behest of the complaint is maintainable, has no force. Learned counsel further submits that since the petitioner has approached this civil court by filing Title Suit No. 142/09 which is pending for necessary disposal, police case was registered as Hailakandi P.S. on the basis of the complaint lodged by the respondent/husband is liable to be quashed, inasmuch as, the petitioner has got efficacious redress, referring to clause 6 of para 102 of the judgment rendered in the case of Bkajanlal (supra). The aforesaid clause speaks as follows : Where there is an expressed legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party a proceeding may be quashed". But a plain reading of the aforesaid clause on the other hand disclose that the same is not attracted in the instant case and there is no bar under the provision of the Cr.PC or any other criminal law for filing FIR by the petitioner or lodging complaint before the court. 11. Consequently, the aforesaid submissions of Mr. Dhar also stands rejected. 12. In view of the above discussions, I do not find any merit in this criminal petition and it stands dismissed. 13. The I/O of the case is directed to complete investigation as expeditiously as possible. Petition dismissed.