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2015 DIGILAW 1076 (HP)

Seema Sahai v. Daljit Singh Sahi

2015-08-11

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. The applicant Smt. Seema Sahai has preferred this application under Sections 191, 192 and 193 of the Indian Penal Code, 1860 read with Section 151 of the Code of Civil Procedure for initiation of Court complaint under Sections 191 and 192 IPC before the appropriate Court against plaintiff Daljit Singh Sahi, defendant No.1 Smt. Sudesh Dogra and defendant No.5 Ms. Urvashi Dogra, for perjury punishable under Section 193 of the IPC on account of : (i) furnishing fabricated documents (ii) making false statement; and (iii) submitting after affixing signatures false applications, affidavits, compromise agreement and also concealing the Will alleged to have been executed by late Sh. Suresh Chand Dogra. 2. Mr. Ajay Mohan Goel, learned counsel for respondents No. 2 and 3 has raised two preliminary submissions: (i) that the application under provisions of Indian Penal Code is not maintainable, that too, by simultaneously invoking the provisions of Section 151 CPC and if at all the application was maintainable, the same could only be maintained under the provisions of procedural law i.e. Code of Criminal Procedure; (ii) that the application is not maintainable inasmuch as once it is not the case of the applicant that the offences enumerated above had 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?, the application would not be maintainable. 3. Insofar as the first contention regarding maintainability of the application under wrong provision of law is concerned, suffice it to say that it is well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision of law, has no effect as it would not vitiate the exercise of power and jurisdiction of this Court so long as the power and jurisdiction exists and can be traced to a source available in law. It is settled that mere mentioning of wrong provision of law when the power exercised is available even though under a different provision, is by itself of no consequence and would not be sufficient to invalidate the exercise of power. 4. Now, coming to the second submission, it is not in dispute that once the application/complaint pertains to an offence under Section 193 IPC, then the provisions of Section 195 Cr.P.C. would come into play. 4. Now, coming to the second submission, it is not in dispute that once the application/complaint pertains to an offence under Section 193 IPC, then the provisions of Section 195 Cr.P.C. would come into play. Section 195 of the Criminal Procedure Code reads thus: “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, 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 is 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), 1353 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.? 5. The issue in the instant case is no longer res-integra in view of the judgment of the Constitution Bench in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another (2005) 4 SCC 370 . 5. The issue in the instant case is no longer res-integra in view of the judgment of the Constitution Bench in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another (2005) 4 SCC 370 . The Constitution Bench after analyzing in detail the contours of provisions contained in Section 340, 195 (1) (b) and after referring to the earlier decisions in Patel Laljibhai Somabhai vs. State of Gujarat (1971) 2 SCC 376 and the decision in Raghunath vs. State of U.P. (1973) 1 SCC 564 and after taking note of deletion of certain words occurring in Section 195 (1) of the old Code, and the 31st report of the Law Commission, came to hold as follows: ?23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded. 25. 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 he highly detrimental to the interest of society at large. 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.P.C. 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.? (underlining supplied by this Court). 6. A perusal of the aforesaid observation reveals that the Hon'ble Constitution Bench repelled the argument of strict construction and after distinguishing many decisions, came to hold that Section 195 is not a penal provision but is a part of procedural law, namely, Cr.P.C., which elaborately gives a procedure for trial of criminal cases. 7. (underlining supplied by this Court). 6. A perusal of the aforesaid observation reveals that the Hon'ble Constitution Bench repelled the argument of strict construction and after distinguishing many decisions, came to hold that Section 195 is not a penal provision but is a part of procedural law, namely, Cr.P.C., which elaborately gives a procedure for trial of criminal cases. 7. Eventually, taking note of the facts in that case, the Court held the Will in question had been produced in the court subsequently and there was no allegation that the offence as enumerated in Section 195 (1) (b) (ii) was committed in respect of the said Will after it had been produced or filed in the Court, the bar created by the said provision would not come into play and hence, there was no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the complainants therein, but the Court would not then act as a complainant. 8. Reverting to the facts, it would be noticed that in the entire application there is not even a single whisper that the offence with respect to the documents had been committed during the time when the document was in ?custodia legis? of this Court. 9. Learned counsel for the applicant would however argue that since the original Special Power of Attorney was withheld from this Court, it would be this Court which alone have the jurisdiction to file the complaint as per the judgment in Iqbal Singh Marwah?s case (supra). 10. This submission is equally without any force as firstly the applicant has not specifically raised this ground in the application and secondly, the ratio of the judgment in Iqbal Singh Marwah?s case (supra) does not support such contention. Rather as observed earlier, the Hon'ble Supreme Court has refused to adopt an enlarged interpretation to Section 195 (1) (b) (ii) and the ratio of the judgment has been culled out in paragraph 33 of its judgment (quoted above). 11. In view of the aforesaid discussion, the preliminary objection raised by the learned counsel for respondents No. 2 and 3 is accepted and the application is held to be not maintainable and dismissed as such. 12. 11. In view of the aforesaid discussion, the preliminary objection raised by the learned counsel for respondents No. 2 and 3 is accepted and the application is held to be not maintainable and dismissed as such. 12. However, the dismissal of this application would not come in the way of the applicant in availing any other remedy which may be available to her under the law. The parties are left to bear their own costs. OMP No. 106 of 2015 In view of dismissal of OMP No. 1443 of 2013, this application has been rendered infructuous.