Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 470 (MP)

Jagannath Singh v. State of M. P.

2011-04-19

G.D.SAXENA

body2011
ORDER 1. Being aggrieved by order dated 9th August, 2010 passed in Sessions Case No.152/2010 by the Third Additional Sessions Judge, Vidisha (M.P.), thereby the trial Judge framed the charges against petitioner for commission of offence under sections 467, 468, 471 and section 199 of IPC, the present petition has been preferred. 2. The facts, in nutshell as unfolded in the record of trial Court, are that on 28th January 2010, the petitioner appeared before the Court of Chief Judicial Magistrate Vidisha (M.P.) as surety in favour of accused person Raj Bahadur Singh Chauhan @ Golu in connection with Crime No.69/10 registered against the accused for committing an offence under section 25 of the Arms Act. While acting as surety for the accused, the petitioner at the time of giving bail, filed his affidavit, bail declaration from and title document of the Land Record Right Book "Bhu-Adhikar Rin Pustika" before the Court. On enquiry by the Court concerned, it is transpired that the surety-accused-petitioner was unknown to the accused of the crime. He was not competent for furnishing bail for accused. The petitioner submitted the false declaration form and also filed the false affidavit in support of the said declaration. The Court immediately conducted the inquiry. The statements of the witnesses were recorded. Thereafter, the trial Magistrate sent the report for conducting the investigation. Accordingly, a case was registered at Crime No.51/10 and after completion of investigation, charge-sheet was filed against the petitioner-accused for commission of offences punishable under sections 420, 205 and 471 of IPC before the Criminal Court. Since offence under section 471 of IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Vidiha. On committal, the trial was commenced before the Third Additional Sessions Judge Vidisha. The learned Judge framed the charges against petitioner-accused for offences under sections 467, 468, 471 and 199 of IPC. Being aggrieved by the same, the present revision has been preferred seeking quashment of framing of charge and the criminal proceedings pursuant there to which are pending before the same Court. 3. The learned counsel for the petitioner contended that if all the statements as appeared from the documents and statements tiled with the charge-sheet are taken to be true, even then, the ingredients of the above offences are not made out. 3. The learned counsel for the petitioner contended that if all the statements as appeared from the documents and statements tiled with the charge-sheet are taken to be true, even then, the ingredients of the above offences are not made out. The trial Magistrate, before whom the charge-sheet is tiled, did not in compliance of the provisions of section 195(1)(b), hold any enquiry and straightway made the complaint to the concerning police station for conducting investigation, whereas it is contemplated in the said provisions that no Court shall take cognizance of the aforesaid offence 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. The procedure in cases mentioned in section 195 is further laid down which requires mandatorily that the concerning Court after holding preliminary enquiry made a complaint thereof in writing and sent it to a Magistrate of the first class having jurisdiction. No such procedure has been followed in the present case, according to the learned counsel for the petitioner. Moreover, the Sessions Court without applying its mind in this regard also framed the charges. It is further submitted that during investigation it was gathered that the land in question was recorded in the name of the petitioner in revenue papers, thus it cannot be said that the forged document was prepared by the petitioner. Hence, it was requested that the charges as framed by the Sessions Court be set aside by quashing the criminal proceedings against the petitioner-accused. 4. Learned Public Prosecutor as well as learned Panel Lawyer for the respondent-State on the other hand, supported the impugned order framing charge against the petitioner and prayed that the petition having no force is liable to be dismissed. 5. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor representing the respondent-State and also perused the record of the Court below. 6. At this juncture, it would be useful to reproduce the section 195 of CrPC, which runs as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. 6. At this juncture, it would be useful to reproduce the section 195 of CrPC, which runs as under: "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 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, 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 is administratively subordinate; (b)(i) of any offence punishable under any of the following section 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 of some other Court to which that Court is subordinate. (2) Where a complaint ha been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such civil Court is situate: Provided that -- (a) where appeals lie to more than one Court, the appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to 'the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. 7. In the case of Iqbal Singh Marwah v. Meenakshi Marwah [ AIR 2005 SC 2119 ], the apex Court held in para 19 : "There is another consideration which has to be kept in mind. Sub-section (1) of section 340, CrPC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate for a which are time consuming. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate for a which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii)." It is further observed in paras 20 and 21 : "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 society at large. AIR 1998 SC 1121 : 1998 AIR SCW 932: 1998 CriLJ 1565 (para 20). 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 society at large. AIR 1998 SC 1121 : 1998 AIR SCW 932: 1998 CriLJ 1565 (para 20). 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 (Third Ed.) para 313, the principle has been stated in the following manner: "The Court seeks to avoid a construction of an enactment that produces as 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." Further, in paras 25 and 26, it has been held as Under: "In view of the discussions made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct. See AIR 1998 SC 1121 : 1998 AIR SCW 932: 1998 CriLJ 1565 view. Section 195(1)(b )(ii), CrPC 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 a custodia legis. 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(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. 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(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), CrPC 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." 8. In the case of Lalita Jalan and another v. Bombay Gas Co.Ltd. and others [ (2003)6 SCC 107 ], this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya v. State of Maharashtra [ AIR 1976 SC 1929 ]; Kisan Trimhak Kothula v. State of Maharashtra [ AIR 1977 SC 435 ]; Superintendent and Remembrancer of Legal Affairs to Government of West Bengal v. Ahani Maity [ AIR 1979 SC 1029 ]; and The State of Maharashtra v. Natwarlal Damodardas Soni [ AIR 1980 SC 593 ], held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the Legislature had in view. 9. In Mahesh Chand Sharma v. State of U.P. [ AIR 2010 SC 812 ], the apex Court while interpreting the provisions of section 195 of CrPC has observed that: "The scheme of the statutory provision may now be examined. Broadly, section 195, CrPC 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’s of the Lawful Authority of Public Servants". 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’s 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 jutice 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, 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." 10. On perusal it appears that on 28th January 2010, the petitioner stood before the Court of Chief Judicial Magistrate Vidisha M.P. as surety in favour of accused person Raj Bahadur Singh Chauhan @ Golu for offence under section 25 of the Arms Act. On perusal it appears that on 28th January 2010, the petitioner stood before the Court of Chief Judicial Magistrate Vidisha M.P. as surety in favour of accused person Raj Bahadur Singh Chauhan @ Golu for offence under section 25 of the Arms Act. As surety the petitioner filed the affidavit, bail declaration form and title document of the Land Record Right Book "Bhu-Adhikar Rin Pustika" before the Court. On inquiry by the Court concerned, it appeared that the surety accused-petitioner was unknown to the accused of the crime. He was not competent for furnishing bail for the accused. It was further revealed that the petitioner filed the false declaration as well as false affidavit in support of the said declaration. The Court immediately conducted the inquiry. The statements of witnesses were recorded. Thereafter, the learned Magistrate sent the report for conducting the investigation to SHO of the Police Station Kotwali Vidisha. After investigation, on the statement of concerned Patwari, the alleged Bhu-Ahikar Rin Pustika filed by the petitioner-accused at the time of bail was found to be forged one. It was further found that both the documents, i.e., the declaration form as well the affidavit of accused were prepared just before production of them in the Court. Admittedly, the offence was committed before the documents were filed in the Court. Therefore quashing of the prosecution of the accused on the ground that the procedure contemplated in section 195(1)(b)(ii) of CrPC was not followed, will not be proper as held by the apex Court in the case of K. Vengachalam v. K. C. Palaniswami [2006(1) MPWN 1=2005(4) MPLJ SC 448]. In the case of Iqbal Singh (supra), it has been categorically laid down that protection engrafted under section 195(1)(b)(ii) of CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it had been produced or given in evidence in a proceeding in any Court, i.e., during the time when the document was in custodia legis. This being the settled position of law, in the opinion of this Court, there appears to be no justification in quashing the prosecution of the petitioner-accused on the ground that provisions of section 195(1)(b)(ii) are applicable. 11. This being the settled position of law, in the opinion of this Court, there appears to be no justification in quashing the prosecution of the petitioner-accused on the ground that provisions of section 195(1)(b)(ii) are applicable. 11. Consequently, no illegality, irregularity, impropriety or incorrectness in the order of framing charge for offence under sections 199, 467, 468, 471 IPC appears in this regard so as to warrant interference in the order of the Court below. 12. Accordingly, finding no substance in the present revision, same is hereby dismissed.