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2014 DIGILAW 1835 (BOM)

Kumudini Mayur v. State of Maharashtra

2014-08-19

M.L.TAHALIYANI

body2014
Judgment : 1. Heard. Admit. 2. By consent of the parties, taken up forthwith for final hearing. 3. The Petitioner was the Complainant before the Court of Additional Chief Metropolitan Magistrate, 40th Court, Girgaum in Criminal Case No.26/SW/2011. The Respondent Nos.2 to 5 were the accused, who were facing trial for the offences punishable under sections 419, 465, 467, 471 of the IPC, read with section 34 of the IPC as also under section 120(B) of the IPC. 4. The order passed by the learned Additional Chief Metropolitan Magistrate, issuing process against the Respondent Nos.2 to 5, was challenged before the Sessions Court by the Respondent Nos.2 to 5. The learned Sessions Court allowed the Revision Application and directed that the order dated 9 September, 2011, passed by the learned Additional Chief Metropolitan Magistrate, Girgaum, should be set aside. 5. Aggrieved by the said order, the Petitioner has moved this court by way of filing the present Writ Petition. 6. Learned Advocate, Mr. Bharat H. Mehta is heard on behalf of the Petitioner and Mr. Piyush Shah, the learned Advocate, is heard on behalf of the Respondent Nos.2 to 5. The learned Additional Public Prosecutor is heard on behalf of the Respondent No.1-State. 7. The allegations against the Respondent Nos.2 to 5 were in respect of forgery of the documents, which were produced by the Respondent Nos.2 to 5 before a bench of this court during the course of the joint trial of two probate petitions which were heard by this court. 8. The learned Sessions Judge took the view that since the alleged forgery had been committed during the said joint trial, the bar under section 195(1)(b)(ii) would be applicable. The learned Sessions Judge has relied upon the judgment of the Hon'ble Supreme Court in the case of Sachida Nand Singh & Anr. Vs. State of Bihar & Anr., reported in 1998 Cri. Law Journal 1565. The Hon'ble Supreme Court had an occasion to refer to the said judgment again in the case of Iqbal Singh Marwah Vs. Meenakshi Marwah, reported in 2005 Cri.L.J. 2161. The Hon'ble Supreme Court, while making reference to the said judgment, has made following observations in para 6 in of Iqbal Singh Marwah's case, which are reproduced below: "6. On a plain reading clause (b)(ii) of sub-section (1) of Section 195 is capable of two interpretations. Meenakshi Marwah, reported in 2005 Cri.L.J. 2161. The Hon'ble Supreme Court, while making reference to the said judgment, has made following observations in para 6 in of Iqbal Singh Marwah's case, which are reproduced below: "6. 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 475 or section 476 IPC 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." 9. After referring to various judgments on the issue, the Hon'ble Supreme Court has held in para 21 of the said judgment as under : "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 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 an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. 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 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." "The learned author has referred to Sheffield City Council vs. Yorkshire Water Services Ltd., (1999) 1 WLR 58 at 71, where, it was held as under: "Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by Judges in developing the common law. . the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society." "In S.J.Grange Ltd., v. Customs and Excise Commissioners (1979) 2 ALL ER 91, while interpreting a provision in the Finance Act, 1972, Lord Denning observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause b(ii)." 10. It is thus clear that the bar will be applicable when the document is custodia legis and not otherwise. The view taken by the learned Sessions Judge was not correct. The order passed by the learned Sessions Judge needs to be set aside. 11. The Petition is accordingly allowed. 12. The order passed by the learned Sessions Judge in Criminal Revision Application 1071 of 2012 is set aside. The order passed by the learned Additional Chief Metropolitan Magistrate, issuing process against the Respondent Nos.2 to 5 in Criminal Case No.26/SW/2011 is hereby restored. 13. Trial to proceed further in accordance with law. 14. 11. The Petition is accordingly allowed. 12. The order passed by the learned Sessions Judge in Criminal Revision Application 1071 of 2012 is set aside. The order passed by the learned Additional Chief Metropolitan Magistrate, issuing process against the Respondent Nos.2 to 5 in Criminal Case No.26/SW/2011 is hereby restored. 13. Trial to proceed further in accordance with law. 14. Parties to appear before the trial court on 30 September, 2014.