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2018 DIGILAW 415 (RAJ)

PHULYA @ PHOOL CHAND v. STATE OF RAJASTHAN

2018-02-02

SABINA

body2018
JUDGMENT : Sabina, J. Petitioner has filed this revision petition under Section 397 read with 401 Code of Criminal Procedure, 1973 challenging the order dated 03.11.2012. 2. Learned counsel for the petitioner has submitted that the Trial Court had rightly taken cognizance of the offence against the accused under Sections 420, 467, 468, 471, 120B and 166 of Indian Penal Code, 1860. However, Appellate Court had erred in allowing the appeal on the ground that bar under Section 195 Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') was applicable. Respondents No.2 to 4 had obtained a wrong report from respondent No.5 with regard to the service of the petitioner in a Revenue suit filed by respondents No. 2 to 4. Hence, the said suit was decreed in ex-parte against the petitioner on 14.09.2001. Thereafter, on coming to know about the passing of the decree, petitioner has moved an application for setting aside the ex-parte decree and the said proceedings are pending. Learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in AIR 2005 Supreme Court 2119 in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, wherein, it was held as under:- "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(1) (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) Cr.P.C. 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." 3. Learned counsel has next placed reliance on the decision of the Hon'ble Supreme Court in George Bhaktan Vs. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference." 3. Learned counsel has next placed reliance on the decision of the Hon'ble Supreme Court in George Bhaktan Vs. Rabindra Lele and Others, (2014) 15 SCC 227 , wherein, it was held as under:- "Eventually, taking note of the facts in that case, the Court in Iqbal Singh Marwah case held that 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." 4. Learned counsel for respondents No. 2 to 5 have submitted that respondent No.2 has since died. Learned counsel has further submitted that the petitioner has not suffered any loss. In-fact, bar under Section 195 Cr. P.C. was applicable in the present case. In the present case, the complaint could have been filed only by the Presiding Officer before whom, the report had been submitted by the process server. 5. As per the case of the complainant, accused had filed a suit against the complainant party and by obtaining a forged report from the process server qua service of the complainant party, got an ex-parte decree in their favour. Now application moved by the complainant party for setting aside the said decree is pending. 6. 5. As per the case of the complainant, accused had filed a suit against the complainant party and by obtaining a forged report from the process server qua service of the complainant party, got an ex-parte decree in their favour. Now application moved by the complainant party for setting aside the said decree is pending. 6. Section 195 Code of Criminal Procedure, 1973 reads as under:- "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), 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 subclause (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) Where a complaint has 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. (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 the appealable decrees or sentences of such former Court, or in the case of a 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 in 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. Controversy involved in the present case is, as to whether petitioner was competent to initiate the criminal proceedings against the accused with regard to the report qua service of the petitioner prepared by the process server. The said controversy is no longer res integra. As per the decisions of the Hon'ble Supreme Court where a document has been forged and later produced in the Court, then the bar created under Section 195 Cr. P.C. would not come into play and the Court could take cognizance of the offence on the basis of the complaint filed by the petitioner. Report prepared by the process server had been produced before the Court. Hence, in the present case, the bar under Section 195 Cr. P.C. would not come into play and the Court could take cognizance of the offence on the basis of the complaint filed by the petitioner. Report prepared by the process server had been produced before the Court. Hence, in the present case, the bar under Section 195 Cr. P.C. was not applicable and the learned Trial Court had rightly taken cognizance of the offence on a complaint initiated by the petitioner. Learned Appellate Court fell in error in allowing the appeal filed by the accused. 8. Accordingly, this petition is allowed. Impugned order dated 03.11.2012, is set aside.