Dhanabhai Narsinhbhai Mithapara v. State of Gujarat
2019-07-29
A.S.SUPEHIA
body2019
DigiLaw.ai
JUDGMENT A.S. Supehia, J. 1. The present application has been filed seeking quashing of the FIR registered at City 'A' Division Police Station, District Surendranagar, being C.R. No. I-89 of 2016 for the offence punishable under Sections 193, 197, 198 and 114 of the Indian Penal Code, 1860 (for short 'the IPC'). 2. Brief facts of the case leading to filing of the present application are as under: 2.1. It is alleged that the allegations levelled in the impugned FIR are to the effect that in the proceedings before the court of Principal District & Sessions Judge, Surendranagar, relating to temporary bail of the applicant No. 2, a certificate was produced by the applicant No. 1 containing incorrect details. It is also alleged that the certificate was produced, wherein an inquiry was made by the court of Principal District & Sessions Judge, Surendranagar, and it was found that the recitals in the certificate are not genuine. Though, the father of the applicants had passed away 15 years back, a certificate issued by the Sarpanch indicated that the father has recently passed away and, therefore, false facts were projected before the court of Principal District & Sessions Judge, Surendranagar and, therefore, upon directions of the court, the impugned FIR came to be filed. 3. At the outset, learned advocate Mr. Virat Popat appearing for the applicants has submitted that no FIR could have been filed as the offence alleged are non-cognizable. He has submitted that as per the mandate of Section 154 of the Criminal Procedure Code, 1973 (for short 'the Cr.P.C.), the registration of FIR is permissible only in case of commission of cognizable offence. He has invited the attention of this Court to the provision of Sections 2(c) and 2(r) of the Cr.P.C. 3.1 Learned advocate Mr. Popat for the applicants has submitted that producing a false certificate before the court concerned would not attract any cognizable offence and that for the offence under Chapter XI of the IPC, a complaint has to be filed by the concerned court or Registrar and the filing of an FIR is not maintainable. He has also submitted that filing of the impugned FIR is clearly non-application of mind since the FIR cannot be registered even if the allegations contained therein about producing the false certificate are taken at their face value.
He has also submitted that filing of the impugned FIR is clearly non-application of mind since the FIR cannot be registered even if the allegations contained therein about producing the false certificate are taken at their face value. He has submitted that the applicants' case is that the registration of FIR itself is bad as the present case relates to offences which are non-cognizable for which he has placed reliance on the judgments of the Apex Court in the case of State of Haryana & Ors. Vs. Bhajanlal & Ors., AIR 1992 SC 604 , in the case of Dr. Subramanian Swamy Vs. Director, CBI & Anr ., (2014) 8 SCC 682 , in the case of State of Gujarat Vs. Girish Radhakishan Varde, (2014) 3 SCC 659 and in the case of Lalita Kumari Vs. Government of Uttar Pradesh, (2014) 2 SCC 1 . He has submitted that the aforesaid judgments would establish that before the registration of FIR, a preliminary inquiry is to be undertaken to find out whether offence is cognizable or not and it is not permissible to investigate a non-cognizable offence to find out whether any cognizable offence is disclosed or not. 3.2 Learned advocate Mr. Popat for the applicants has submitted that the assertions made in the FIR are false since no forgery is established as the signatures in the forged letter are genuine and no one has signed on someone else name and hence, forgery is not established. He has further submitted that the action of the investigating agency in claiming the document to be forged prima facie does not inspire confidence for the reason that the author of the document herself has been made accused in the present case and it is alleged that she gave a false certificate by colluding with the accused and if this be the case, then there is no question of forgery and if there is forgery then the Sarpanch would not be an accused. He has further submitted that the provisions of Section 195(b)(ii) of the Cr.P.C. will apply and hence, the FIR cannot lodged as per the provisions of Section 2(d) of the Cr.P.C. Thus, he has submitted that the impugned FIR is required to be quashed and set aside. 3.3 Learned advocate Mr. Popat for the applicants has submitted that a bare reading of the affidavit filed by the Investigating Officer in Criminal Misc.
3.3 Learned advocate Mr. Popat for the applicants has submitted that a bare reading of the affidavit filed by the Investigating Officer in Criminal Misc. Application No. 446 of 2016 indicates that a different stance is being taken before this Court with regard to forgery. It is submitted that even if it is assumed that such police statement exists then also merely upon the statement of the co-accused no proceeding or charge-sheet can be filed against the applicants. However, it is reiterated that the Investigating Officer may be directed to explain such situation. In support of his submissions, he has placed reliance on the judgments in the cases of State of Gujarat vs. Motibhai Jethabhai Makwana, 1992 (2) GLH 306 , Sheila Sebastian vs. Jawaharaj & Anr., (2018) 7 SCC 581 and Md. Ibrahim vs. State of Bihar, 2009 (8) SCC 751 . 3.4 Learned advocate Mr. Popat for the applicants has submitted that no FIR in such type of case can be filed. The Code of Criminal Procedure provides different mechanism of taking cognizance by the Magistrate which could be: (i) Upon Police report viz. Charge - sheet under Section 173 of Cr.P.C. (ii) Complaint under Section 2(d) of Cr.P.C. In the present case, investigation if continued would not yield any result as cognizance of offence is barred under Section 195 of Cr.P.C. except upon compliant in writing. Mr. Popat has submitted that it is settled law that an FIR registered under Section 154 of the Cr.P.C. cannot be termed as complaint under Section 2(d) of the Cr.P.C. In the present case. It is submitted that offences are covered under clause (i) of Section 195(1)(a) of the Cr.P.C. Thus, there is no question of dwelling into the aspect of forgery when the case of the prosecution as it stands is covered under Section 195(1)(a)(i) of the Cr.P.C. 3.5 Learned advocate Mr. Popat has submitted that the rationale behind disfavouring the police Page 5 of investigation in such type of offence is that when there is offence against administration of justice the same shall be inquired and tried by the court concerned for expedient reasons and, therefore, the scheme of the Cr.P.C. has kept the investigating authority - police agency out from such type of offences.
However, while compliant under Section 2(d) of the Cr.P.C. is preferred the concerned Magistrate Court may very well direct the same to be inquired into by any officer if at all required. 3.6 Learned advocate Mr. Popat for the applicants has also placed reliance on the judgments dated 15.02.2019 passed in Special Criminal Application No. 4105 of 2017, dated 15.11.2014 passed in Criminal Misc. Application No. 12768 of 2012 and in the case of State of Karnataka vs. Hemareaddy, (1981) 2 SCC 185 . Thus, he has submitted that the impugned is in clear violation of provision of law and hence, the same is required to be set aside. 4. Per contra, learned advocate Ms. Trusha Patel appearing for the respondent No. 2 - first informant has vehemently opposed the submissions advanced by the learned advocate Mr. Virat Popat and contended that the impugned FIR is maintainable and there is no need of filing of a complaint since prima facie offence of forgery is established. She has submitted that after the investigation, if it is revealed that the offence of forgery is established, in that case, there is no need of quashing the FIR. She has also submitted that the bar, contained in Section 195 of the Cr.P.C. will not apply in this case as the police can take cognizance of any offence under Section 154 of the Cr.P.C. She has submitted that the FIR will be governed by the provisions of Sections 154 and 156 of the Cr.P.C. She has further asserted that the allegations made in the FIR disclose the offence of preparing a forge document, which attracts the provisions of Section 473 and 474 of the IPC. It is further submitted by learned advocate Ms. Trusha Patel that the bar under Section 195 of the Cr.P.C. would apply only in case where offences mentioned in the said section have been committed with respect to a document after it has been produced or given in evidence in a proceedings in a Court i.e. during the time when the document was in custodia legis. In support of her submissions, she has placed reliance on the judgment of the Apex Court in the case of Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr., AIR 2005 SC 2119 , judgment passed in Criminal Appeal No. 1451 of 2013 and judgment dated 14.10.2016 passed in Criminal Misc.
In support of her submissions, she has placed reliance on the judgment of the Apex Court in the case of Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr., AIR 2005 SC 2119 , judgment passed in Criminal Appeal No. 1451 of 2013 and judgment dated 14.10.2016 passed in Criminal Misc. Application No. 18745 of 2013. 4.1 Lastly, the learned advocate Ms. Trusha Patel has submitted that the inherent powers of the High Court under Section 482 of the Cr.P.C. are to be exercised sparingly. She has placed reliance on the judgments of the Apex Court in the cases of Dineshbhai Chandubhai Patel vs. State of Gujarat, 2018 (3) SCC 104 , in the case of State of Telangana vs. Habib Abdullah Jeelani, 2017 (2) SCC 779 , in the case of State Represented By Inspector of Police vs. N.S. Gnaneswaran, 2013 (3) SCC 594 and in the case of Pratibha vs. Rameshwari Devi, 2007 (12) SCC 369 . Thus, she has submitted that the present application deserves to be rejected. 5. Learned Public Prosecutor Mr. Mitesh Amin has submitted that the impugned FIR has been registered on the basis of the a written complaint dated 09.09.2016 given by the Registrar, Principal District Court, Surendranagar, to the Police Inspector, Surendranagar City 'A' Division Police Station, for producing two documents as forged documents i.e. (1) Affidavit of applicant No. 1 dated 03.09.2016; and (2) Certificate of Sarpanch dated 03.09.2016 of Amrapar-Abhepar-Kanpar Joint Gram Panchayat. He has submitted that the afore-stated two documents are submitted in Criminal Misc. Application No. 420 of 2016 pending before the court of Additional Sessions Judge, Surendranagar, wherein the applicant No. 2 had prayed for granting him bail on the basis of the above referred two documents. He has also submitted that since the aforesaid two documents were prima facie found to be false, the Registrar of the Additional Sessions Judge, Surendranagar was asked to file the FIR vide order dated 08.09.2016. 5.1 Learned Public Prosecutor Mr. Amin has submitted that though the investigation was stayed vide order dated 13.01.2017, necessary investigation is further required on the basis of revelation made by Somiben Gelabhai Jhejaria regarding the forgery etc. He has submitted that the statement of Somiben Gelabhai Jhejaria needs consideration.
5.1 Learned Public Prosecutor Mr. Amin has submitted that though the investigation was stayed vide order dated 13.01.2017, necessary investigation is further required on the basis of revelation made by Somiben Gelabhai Jhejaria regarding the forgery etc. He has submitted that the statement of Somiben Gelabhai Jhejaria needs consideration. Reliance is placed by him on the judgments in the case of Dolatram Tekchand Harjani vs. State of Gujarat, 2013 (3) GLR 2133 and in the case of Kailash Govindram Rathi vs. State of Gujarat, 2008 (1) GLR 750 . Reference is also made by the learned Public Prosecutor on Sections 154 and 155 of the Cr.P.C. and it is submitted that the investigation in a case where all the offences are non-cognizable is only permissible on the order of the Magistrate/court and sub-section (4) of Section 155 of the Cr.P.C. also states about the cases where two or more offences are related and if one of any offence is found cognizable then case is required to be treated as cognizable case. It is further submitted by him that the revelation made by Somiben Gelabhai Jhejaria in her statement establish the case of forgery of documents. 5.2 Learned Public Prosecutor Mr. Amin has submitted that at this stage the impugned FIR needs no interference since after the investigation, if it is established that offence of forgery is committed, then the court can definitely take cognizance of the said offence. 6. This Court has considered various submissions advanced by the learned advocates appearing for the respective parties as well as the documents as pointed out by them and the relevant provisions of law are also noticed. Though, various decisions are cited at the bar, I may not deal with all of them; as they are repetitive and are not relevant to the issues raised in the present case. 7. The question, which needs deliberation by this Court is that whether the legal bar contained in the provisions of Section 195 of the Cr.P.C. is attracted to the impugned FIR, which is registered for the offence punishable under Sections 193, 197, 198 and 114 of the IPC and the investigation is required to be stalled. 8. The applicant No. 2 was in the judicial custody for an offences under sections 307, 452, 323, 504, 114 of the IPC and sections 25(1)(1-B)A and 27 of the Arms Act.
8. The applicant No. 2 was in the judicial custody for an offences under sections 307, 452, 323, 504, 114 of the IPC and sections 25(1)(1-B)A and 27 of the Arms Act. It was found that applicant No. 1 had filed a false affidavit dated 03.09.2016 stating that his father had passed away on 02.09.2016 and he wanted to be a part of the rituals and along with his affidavit, he had produced the death certificate of his father dated 03.09.2016 of Amrapar-Abhepar-Kanpar Joint Gram Panchayat bearing the seal and signature of the Sarpanch for securing the temporary bail. The applicant had sought bail on the basis of the above referred documents, which are subsequently found to be false and fabricated and accordingly, order dated 08.09.2016 was passed. 9. The genesis of the impugned FIR lies in the order dated 08.09.2016 passed below Exh. 1 in Criminal Misc. Application No. 420 of 2016 by the Additional Sessions Judge, Surendranagar, who had directed the Registrar, District Court, Surendranagar to lodge the FIR under the provisions of Section 195(1)(b)(iii) of the Cr.P.C. Accordingly, the Registrar lodged the impugned FIR. 10. The aforenoted facts reveal that the certificate of Amrapar-Abhepar-Kanpar Joint Gram Panchayat dated 03.09.2016 is alleged to have been fabricated or forged or prepared outside the court and the same is produced before the Additional Sessions Court for seeking bail. At this stage, it would be apposite to refer to the provisions of Section 195 of the Cr.P.C., which read as under: "195.
At this stage, it would be apposite to refer to the provisions of Section 195 of the Cr.P.C., which read as under: "195. Prosecution for contempt of lawful authority of public servant, 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, 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, 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), a [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.
(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 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." 11. Section 340 of the Cr.P.C., which prescribes procedure in cases mentioned in section 195 also needs reference. "340. Procedure in cases mentioned in section 195 (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; [(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.]. (4) In this section, "Court" has the same meaning as in section 195. 12. The Constitution Bench of the Supreme Court in the case of Iqbal Singh Marwah & Anr. (supra), while examining the provisions of Section 191(1) Cr.P.C. has held thus: "10. Section 195(1) mandates a complaint in writing of the court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341 Cr.P.C. which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is -'Provisions As To Offences Affecting The Administration of Justice'. Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the Section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the Sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the Sections which follow them than might be afforded by a mere preamble. (See Craies on Statute Law, 7th Ed. Pages 207, 209).
(See Craies on Statute Law, 7th Ed. Pages 207, 209). The fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence in court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in court cannot, strictly speaking, be said to be an offence affecting the administration of justice. 25. 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." 13. Thus, the Supreme Court has held that the fact that the procedure for filing a complaint by Court has been provided under Sections contained in Chapter-XXVI dealing with the offences affecting administration of justice, which is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz. which is committed after the document is produced or given in evidence in court. Thus, the entire chapter XXVI of the Code encompasses the offence, which are committed after the documents are produced in the court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in court cannot, strictly speaking, be said to be an offence affecting the administration of justice. It if further held that Section 191(1)(b)(ii) of the Cr.P.C. would be attracted only when the offence is 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.
It if further held that Section 191(1)(b)(ii) of the Cr.P.C. would be attracted only when the offence is 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. Indubitably, in the present case, the documents were not under the custodia legis of the Sessions Court, Surendranagar and the same were prepared outside the court and produced before the court in order to secure bail, hence the provision of section 340 will not get attracted. Thus, the procedure prescribed under Section 340 of the Cr.P.C. For taking cognizance under Section 195(1) will not apply in the present case. Hence, the lodging of the complaint would be a nullity. 14. The impugned FIR is registered for the offence under Sections 193, 197, 198 and 114 of the IPC and as per the first schedule of classification of offence made in the Cr.P.C., they are unquestionably non-cognizable offence, however, prima facie the allegations disclose a cognizable offence. It is alleged that the accused have concocted false documents and has used them as genuine by producing the same before the Court to secure temporary bail. The certificate bears the seal of the Amrapar Gram Panchayat and the signature of the Sarpanch. Prima facie the offence under sections 471 and 474 of the IPC is also revealed in the FIR. 15. At this stage, reference needs to be made to the provisions of section 155 of the Cr.P.C. The same read as under: "SECTION 155: Information as to non-cognizable cases and investigation of such cases (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to he entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable." 16. Thus, sub-section (4) of section 155 of the Cr.P.C. stipulates that if a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, not withstanding that the other offences are non-cognizable. The Coordinate Bench of this Court in the judgment dated 23.04.2012 passed in Criminal Misc. Application No. 3805 of 2010 on which the reliance has been placed by the applicants, has held that for the offence under sections 193 and 196 of the IPC, which are non-cognizable offences, an FIR cannot be registered since section 154 of the Cr.P.C. stipulates "Information in cognizable cases. However, the same will not apply to the facts of the case since in the instant case the FIR prima facie discloses a cognizable offence, which would attract the provision of section 155 of the Cr.P.C. under Section 474 of the IPC, which is a cognizable offence. In the case of Girish Radhakishan Varde (supra), the Apex Court was dealing with the question of law whether the Magistrate has the power to alter or add the charge after the submission of the charge-sheet, while taking the cognizance on it. The Apex Court has held that the Magistrate cannot alter the charge at the time of taking cognizance as the same would be permissible by the trial court at the time of framing the charge under Sections 216, 218 and 228 of the IPC. Simultaneously, the accused has also the liberty at this stage to submit whether a particular charge is to be found or not.
Simultaneously, the accused has also the liberty at this stage to submit whether a particular charge is to be found or not. It is further held that "the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which is to deal with a case based on a complaint before the magistrate and the police powers based on a police report/FIR has been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of the Cr.P.C. The affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the chargesheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the chargesheet, would be determined only at the time framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 of the Cr. P.C. clearly shall have to be followed.". 17. In the present case, the question involved is whether the investigation should be scuttled at the initial stage, after lodging the FIR in view of provisions of Sections 190 and 340 of the Cr.P.C. is an additional aspect, which necessitates reference though the same is not addressed by the learned advocates for the respective parties. The same is dealt with and referred to by the Apex Court in the case of State of Punjab Versus Raj Singh, 1998 (2) SCC 391 : "We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468, Indian Penal Code by them in course of the proceeding of a civil suit, on the ground that Sec. 195(1)(b)(ii), Code of Criminal Procedure prohibited entertainment of and investigation into the same by the police.
From a plain reading of Sec. 195, Code of Criminal Procedure it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Sec. 190(1) of the Code of Criminal Procedure, 1973; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Sec. 195, Code of Criminal Procedure. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Sec. 195(1)(b) of the Code of Criminal Procedure, 1973, but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Sec. 340, Code of Criminal Procedure The Judgment of this Court in Gopal Krishna Menon Vs. D. Raja Reddy, AIR 1983 SC 1053 , on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the Civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Sec. 195 of the Code of Criminal Procedure, 1973" 18. The aforesaid judgment was further referred in the case of M. Narayndas vs. State of Karnataka, 2003 (11) SCC 251 and the Apex Court has held thus: "10................We see no substance in this submission. The law on the point is clear. At the stage of investigation Section 195 has no application. We are therefore not concerned with the question whether Section 195 applies to documents forged/fabricated prior to their being produced in Court. That question only arises after the Court takes cognizance.
The law on the point is clear. At the stage of investigation Section 195 has no application. We are therefore not concerned with the question whether Section 195 applies to documents forged/fabricated prior to their being produced in Court. That question only arises after the Court takes cognizance. At this stage the only question is whether the investigation should be permitted to proceed or not." 19. Both the above referred decisions were approved by the Apex Court in case of Vishal Agrawal vs. Chhatisgarh State Electricity Board, 2014 SCC (3) 696. The Supreme court has observed thus: "23 Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that no other avenue is opened and the complaint/FIR cannot be lodged with the police. It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in the Code. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondent's Counsel is right in his submission that if the offence under the Code is cognizable, provisions of Chapter XII containing Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons/parties, as mentioned in Section 151, to become complainant in such cases and file complaint before a Court in writing. When such a complaint is filed, the Court would be competent to take cognizance straightway. However, that would not mean that other avenues for investigation into the offence which are available would be excluded. It is more so when no such special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure." 20. The conspectus of the law enunciated by the Supreme Court steers to the aspect that the bar under section 195 of the Cr.P.C. is not applicable at the stage of investigation.
The conspectus of the law enunciated by the Supreme Court steers to the aspect that the bar under section 195 of the Cr.P.C. is not applicable at the stage of investigation. It is held that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that no other avenue is opened and the complaint/FIR cannot be lodged with the police. The Apex Court has held that the effect of Section 195 of the Cr.P.C. comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) of the Cr.P.C; and it has nothing to do with the statutory power of the police to investigate into an FIR, which discloses a cognizable offence, in accordance with Chapter-XII of the Cr.P.C. even if the offence is alleged to have been committed in, or in relation to, any proceeding in the Court. It is further held that the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by 195 of the Cr.P.C. If the charge-sheet is filed on the completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) of the Cr.P.C., however, nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 of the Cr.P.C. Thus, no illegality can be found in the order passed by the 08.09.2016 passed by the Additional sessions judge, Surendranagar below Exh. 1 issuing directions to file a police complaint before the concerned police station having jurisdiction. 21. In view of the aforesaid observations and analysis, the present application stand rejected. RULE discharged. Interim relief, if any, stands vacated. The observations made in the present order may not be treated detrimental to the other proceedings filed by the applicants.