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2024 DIGILAW 1975 (ALL)

Ashish v. State of U. P.

2024-08-30

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Mrs. Vijeta Srivastava, learned counsel for applicant and Sri Alok Kumar Gupta, learned counsel for Opposite Party No. 2. 2. Applicant before this Court is proposed accused. Complainant has filed a criminal complaint case, however after statements of complainant and witnesses recorded under Sections 200 and 202 Cr.P.C., Magistrate concerned has passed order under Section 203 Cr.P.C. rejecting complaint mainly on ground that for allegations made in complaint, appropriate remedy is to file an application under Section 340 Cr.P.C. as well as that there is a bar under Section 195 Cr.P.C. 3. Aforesaid order was challenged at the instance of complainant before Revisional Court. Revisional Court after hearing both parties by means of impugned order dated 20.02.2024 set aside the order passed by Magistrate and remanded the matter for fresh consideration by assigning reasons that grounds mentioned in the order passed under Section 203 Cr.P.C. were not legally sustainable. For reference relevant part of impugned order dated 20.02.2024 is reproduced hereinafter: 4. Learned counsel for applicant submits that allegations levelled against applicant are false. There is a police report in favour of applicant. However, learned counsel failed to convince the Court on legal issue that reason assigned by Magistrate while passing order under Section 203 Cr.P.C. were not legally sustainable and that Revisional Court has passed impugned order on basis of settled principle of law. 5. Learned counsel appearing for Opposite Party No. 2 has supported impugned order. 6. Revisional Court has taken note of a judgment passed by Supreme Court in Iqbal Singh Marwa and another v. Meenakshi Marwah and another , (2005) 4 SCC 370 . Recently also the Supreme Court in Ashok Gulabrao Bondre vs. Vilas Madhukarrao Deshmukh and others , (2023)9 SCC 539 it has considered the issue involved in present case and referring the relevant part of judgment in Iqbal Singh Marwa (supra) in paras 15, 16 and 17, has held as under: “15. Finding the two conflicting views taken with regard to the interpretation of Section 195 of the Cr.P.C., the question was referred to the Constitution Bench of this Court in the case of Iqbal Singh Marwa (supra). It will be relevant to refer to paragraph 7 of the said judgment, which is as under: “ 7. On a plain reading clause (b)(ii) of subsection (1) of Section 195 is capable of two interpretations. It will be relevant to refer to paragraph 7 of the said judgment, which is as under: “ 7. On a plain reading clause (b)(ii) of subsection (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.” 16. After observing the aforesaid and considering the entire scheme under Section 195 of the Cr.P.C., so also under Section 340 of the Cr.P.C., this Court observed thus: “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. 34. 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. 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.” 17. It could thus clearly be seen that this Court, on unequal terms, has held that the view taken in the case of Sachida Nand Singh (supra) that Section 195 (1)(b)(ii) of the Cr.P.C. would be attracted only when the offence enumerated in the said provision was committed in respect of a document after it has been produced or filed in evidence during proceedings before any Court, i.e. during the time when the document is custodia legis. The Court has clearly held that, insofar as the Will which is alleged to have been fabricated before it was produced in the Court, the embargo created by Section 195 (1)(b)(ii) of Cr.P.C. would not come into play .” 7. As referred above, it has been reiterated that Section 195 (1)(b)(ii) Cr.P.C. is attracted only when offence enumerated in said provision was committed in respect of a document after it has been produced or filed in evidence during proceedings before any Court, i.e. during the time when document is custodia legis. However, facts of present case are absolutely contrary to it since forgery, if any, was committed outside the Court. Therefore, Revisional Court has returned a legally permissible finding which does not require any interference under inherent jurisdiction. 8. Otherwise also, Revisional Court while setting aside the order passed under Section 203 Cr.P.C. has remanded matter to Magistrate concerned and till date no adverse order has been passed, therefore, even applicant cannot be considered to be much aggrieved with impugned order. 9. The application is accordingly dismissed.