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2019 DIGILAW 488 (PAT)

SANJAY KUMAR v. STATE OF BIHAR

2019-04-02

AHSANUDDIN AMANULLAH

body2019
JUDGMENT/ORDER : Ahsanuddin Amanullah, J. Heard learned counsel for the petitioner; learned A.P.P. for the State and learned counsel for the opposite party no. 2. 2. The petitioner has moved the Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') for the following relief: "That this petition is directed for quashing the order dated 17.01.2014 passed by learned Sub Divisional Judicial Magistrate, Gaya in Complaint Case No. 343 of 2012 (Trial No. 2292 of 2012), pending at present in the same court by which the learned S.D.J.M., Gaya has rejected the application of the petitioner for discharging him from the case and has directed for framing a charge under Sections 417, 466 and 120B of the Indian Penal Code, even though there is no material against the petitioner." 3. The opposite party no. 2, who is the wife of the petitioner has filed Complaint Case No. 343 of 2012, alleging that the petitioner and his sister had produced copy of a document purportedly written by the opposite party no. 2 to the National Commission for Women which according to her was a forged and fabricated document in view of the information provided to the brother of the opposite party no. 2 under the Right to Information Act by the National Commission for Women, New Delhi stating that no such application had been received by the Commission. 4. Learned counsel for the petitioner submitted that the complaint itself is not maintainable for the reason that Section 195 of the Code restricts the filing of complaint in matters relating to documents which have been produced before the Court for which such complaint has to be filed by the Court. It was submitted that in the present case, the complaint case, at the behest of the opposite party no. 2, being a private party, was not permissible in the eyes of law. Learned counsel submitted that further, there being two accused i.e., the petitioner and his sister and the said document having been produced by the sister of the petitioner, no offence under Sections 417, 466 and 120B of the Indian Penal Code under which cognizance has been taken and direction for framing of charge has been made, is tenable as far as the petitioner is concerned. Learned counsel drew the attention of the Court to the judgment dated 26.05.2016 passed by the Judicial Magistrate, Gaya in Complaint Case No. 343 of 2012 (T.R. No. 421 of 2016) in which, upon trial, the sister of the petitioner has been acquitted. Learned counsel submitted that forgery has been defined under Section 463 of the Indian Penal Code and all documents which are a result of such forgery and produced in Court can be the subject matter of a complaint, but only by the Court itself and not at the instance of a private person. 5. Learned A.P.P. submitted that the Court below has rightly taken cognizance and also dismissed the prayer for discharge of the petitioner, as clearly on behalf of the petitioner and his sister jointly, a forged document had been created which gives the right to the opposite party no. 2 to file such a complaint. 6. Learned counsel for the opposite party no. 2 submitted that the reliance on the judgment in the case of the sister of the petitioner, by which she has been acquitted, is totally erroneous. Learned counsel submitted that initially the present case was allowed in favour of the petitioner but the same being done in a perfunctory manner, the Hon'ble Supreme Court by judgment dated 23.07.2018 in Criminal Appeal No(s). 924 of 2018, has set aside the judgment of a Bench of this Court dated 10.09.2015 in that case and the matter remitted for proper consideration. Learned counsel submitted that in the acquittal order relating to the sister of the petitioner, the Court had noted that the case against the petitioner had been dismissed and that is why the evidence recorded of a prosecution witness has been disallowed. It was submitted that even such ground was erroneous for the reason that the said witness was again examined after framing of charge and learned counsel for the petitioner had cross-examined her but learned counsel for the sister of the petitioner not having cross-examined, responsibility for the same would not rest on the opposite party no. 2, as it was incumbent upon learned counsel for the sister of the petitioner to cross-examine the witness and if no opportunity was given then also it was incumbent and mandatory upon the sister of the petitioner to file an application before the Court concerned for recall of the witness for the purpose of cross- examination. 2, as it was incumbent upon learned counsel for the sister of the petitioner to cross-examine the witness and if no opportunity was given then also it was incumbent and mandatory upon the sister of the petitioner to file an application before the Court concerned for recall of the witness for the purpose of cross- examination. It was submitted that the same not having been done, it would be presumed in law that the sister of the petitioner did not desire to cross-examine the witness and, thus, such evidence would stand, notwithstanding the fact that learned counsel for the sister of the petitioner had not cross-examined the said witness. Learned counsel further submitted that the objection that no such complaint can be filed, as per the provisions of Section 195 of the Code, is totally misplaced. He submitted that Section 495 of the Code deals only with regard to forgery relating to a document which has been given as evidence in the Court. It was submitted that the stage has not arrived because ultimately, the Court has not given a finding with regard to the documents being forged. It was submitted that only such offence relating to a forged document being used in Court is covered under Section 495 of the Code and not the fact of forging a document. It was submitted that forging a document itself give a cause of action to the person who is adversely affected by the same and that is why, under Section 195 of the Code itself, it has been provided that only offences described in Section 463, which are punishable under Sections 471, 475 or 476 of the Indian Penal Code would be covered. Thus, learned counsel submitted, that the same clearly excludes Sections 466, 468 and 469 of the Indian Penal Code which relate to forgery being committed of record of Court or of public register etc; forgery for purpose of cheating and forgery for purpose of harming reputation, respectively. Similarly, it was submitted that an offence punishable under Section 417, which relates to punishment for cheating, is also not covered under Section 195 of the Code. Similarly, learned counsel submitted that Section 120 B of the Indian Penal Code relates to punishment for criminal conspiracy which has been defined in Section 120-A of the Indian Penal Code. Similarly, it was submitted that an offence punishable under Section 417, which relates to punishment for cheating, is also not covered under Section 195 of the Code. Similarly, learned counsel submitted that Section 120 B of the Indian Penal Code relates to punishment for criminal conspiracy which has been defined in Section 120-A of the Indian Penal Code. It was submitted that the same also is not covered by Section 195 of the Code. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court does not find any merit in the present application. Clearly, as per the official information received by the opposite party no. 2, under the Right to Information Act, a document which purportedly relates to an application made by the opposite party no. 2 to the National Commission for Women, New Delhi and their endorsement of the same, having been certified to be non existent in the official records would give rise to a genuine presumption of the documents being forged. Thus, this give rise to a cause of action, both to the Court where it may be utilized as well as to the person concerned who is wrongly shown to be the author of that document and which causes prejudice to such person. In the present case, the document purportedly shows that the application was filed by the opposite party no. 2, before the National Commission for Women, New Delhi which has been found to be false. Thus, the same would definitely give a cause of action to the opposite party no. 2 to maintain a complaint independently. The legislature being conscious of the fact has, thus, left out Sections 466 to 469 of the Indian Penal Code out of the purview of Section 195 of the Code. 8. Thus, at the cost of repetition, the allegation in the complaint not being covered under Section 195 of the Code cannot be said to be not maintainable on that ground. 9. Accordingly, for reasons aforesaid, the application stands dismissed.