Singhari Brajabandhu Kar And Another vs State Of Odisha And Another on 7 July, 2017

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Orissa High Court

Singhari Brajabandhu Kar And Another vs State Of Odisha And Another on 7 July, 2017

Equivalent citations: 2018 CRI. L. J. 3013, (2017) 179 ALLINDCAS 379 (ORI), (2017) 68 OCR 228, (2017) 124 CUT LT 1106

Bench: S.K.Mishra

                HIGH COURT OF ORISSA ; CUTTACK
                             CRLMC NO.2063 OF 2014

   From an order dated 21.10.2013 passed by the learned S.D.J.M.,
   Puri in G.R. Case No.1472/2013.

                                ___________

   Singhari Brajabandhu Kar
   and another                                ...             PETITIONER


                       Versus

  State of Odisha                              ...            OPPOSITE PARTIES
  and another

                                         ----------------

         For petitioners            :    Mr.Samir Kumar Mishra,
                                         J.Pradhan, S.K.Rout, A.K.Behera
                                         and P.P.Mohanty.


        For opp.party no.1      :         Addl. Standing Counsel.

        For opp.party no.2      :         S.K.Dash, A.Tripathy & S.Mishra

                                        ----------------
PRESENT:


         THE HONOURABLE MR. JUSTICE S.K.MISHRA

                    Date of judgment: 07.7.2017

S.K.Mishra,J.        Petitioners, who are accused Nos.1 and 2 in I.C.C.
        No.244/2013 of the court of learned S.D.J.M., Puri, which was
        later registered as G.R. Case No.1472/2013 of the court of
        learned S.D.J.M., Puri arising out of Puri Town P.S. Case
                          2




No.129/2013, have assailed the order of the learned S.D.J.M.
taking cognizance against them on 21.10.2013 for the alleged
commission of offences under Sections 420/471/468/467/109/
34 of the I.P.C., 1960 and issuing N.B.W. against them.

2.      It is apparent from the records that the complainant in the
I.C.C. case happens to be the legal heir of one Bipin Bihari Nanda.
He along with others succeeded to the property recorded under
Khata    No.965   situated   at    Mouza   Samanga,      Tahasil-Puri
measuring an area of Ac.8.92 decs. The land was recorded in the
name of Sri Goura Gopala Jew Bijaya Nija Gruha. After initiation
of consolidation proceeding, the same was recorded in Khata
No.1016 in stitiban status in favour of the complainant, his
brothers and sisters.

3.      Petitioner no.1-Singhari Brajabandhu Kar filed a revision
under Section 37(1) of the Orissa Consolidation of Holdings and
Prevention of Fragmentation of Land Act, 1972 (hereinafter
referred to as the "Act" for brevity) and prayed that the land be
recorded in his name on the basis of the registered deed executed
by the father of the complainant-opposite party no.2. The case
was remanded to the court of Addl. Sub-Collector by the learned
Commissioner,     Consolidation,   Bhubaneswar.     On     4.12.2007
learned Addl. Sub-Collector issued notices to the parties fixing
26.12.2007

for hearing. But the complainant and his brothers and sisters did not receive any court notice in the said proceeding and on 26.12.2007, as per the report of the Process Server, learned Addl. Sub-Collector reflected in the order sheet that notice has been duly served on the opposite party. It is the case of the opposite party that he and his siblings are residing in different places and nobody is staying in the addresses mentioned in the case record, i.e. at Baseli Sahi, Puri. So the endorsement of 3 process server regarding service of notice was false and concocted and in collusion with the accused persons including petitioner nos.1 and 2.

4. Again notices were issued fixing the date of hearing on 9.3.2009 and again the process severer namely, Shankar Swain made endorsement that notices were served upon the complainant and his siblings, but they denied to receive the notices. It is seen that the notices were allegedly served in presence of accused 4 and 5 who appear as witnesses to the summons. It is further alleged that a false Amin Report was prepared by accused no.2 stating therein that accused no.1 is in possession of the land in question. Therefore, the complainant approached the learned S.D.J.M. to forward the complaint petition to the I.I.C. Town P.S., Puri under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for brevity) for registration of the case and investigation of the same. Upon receipt of such complaint, the I.I.C. registered a case and directed the Investigating Officer to investigate into the case and to take appropriate action. The investigation of the case has been completed. The I.O. has filed charge sheet against the accused persons. In the mean time application for anticipatory bail filed by the petitioners was rejected by this Court. Thereafter cognizance was taken. The order of taking cognizance of the offences and issuing process against the petitioners are challenged in this case.

5. In the application under Section 482 of the Code, the petitioners have originally taken the ground that offence is not made out on the facts of the case and that there is a question of double jeopardy and one case has already been registered against some persons in the alleged murder, which was taken place 4 twenty-five years back on the allegation that by impersonation the petitioners have forged the lease deed in their favour by endorsing forged signature of their father. The petitioners contended that they are facing trial in two cases for the same offence and the principle of double jeopardy should apply to the case and the cognizance should be quashed.

6. However, in course of hearing learned counsel for the petitioners amended their application under Section 482 of the Code and added the ground that the order of taking cognizance of the offence is hit by the provision of Section 195 (1)(ii)(b) of the Code as complaint has not been made by the court in which the alleged forgery has been committed.

7. In the case of State of Haryana and others -versus- Ch. Bhajan Lal and others; AIR 1992 SC 604, the Hon'ble Supreme Court has laid down the ground on which the cognizance can be quashed or criminal proceeding can be quashed. They are:-

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

8. It is apparent from the record that there is enough material on record to show that prima facie case is made out as there has been some forgery and on the basis of fraudulent representation by the Process Server on two occasions with respect to the notice of the complainant and his siblings the Revenue Proceeding was taken up ex-parte against the complainant and his siblings. So it is in correct to say that there is no material on record to show that offence as alleged has not been made out on the basis of the case.

9. The second contention is that an another case bearing I.C.C. No.325/2011 was initiated by the complainant for the alleged commission of offences under Sections 468/471/302/34 6 of the I.P.C. before learned S.D.J.M., Puri which has been registered as G.R. Case No.1452/2011 arising out of Basali Sahi P.S. Case No.73/2011. The copy of the complaint petition is part of the record and it is seen that it has been registered for the alleged commission of offence under Sections 468/471/34 of the I.P.C. Moreover, the averments made in the said complaint is that accused persons committed murder of the father of Kali Prasad Nanda and got a registered lease deed executed by impersonation. Thus, the argument of Mr. Mishra, learned counsel for the petitioners that the self same occurrence is being investigated in a different case is incorrect. In that case, the allegation of the informant/complainant is that a forged document has been executed and registered by impersonation after the suspicious death of the father. In the present case the allegation against the accused persons is that they connived with the Process Server of the Court of the Addl. Sub-Collector, Puri and in some cases preparing some forged documents, notice was made sufficient on the complaint and his siblings and on the basis of such, the learned Addl. Sub-Collector, Puri took up hearing of the case and passed an order in favour of the petitioners ex-parte, i.e. without hearing the descendents of late Bipin Bihari Nanda. So the contention of the learned counsel for the petitioners is neither tenable nor acceptable.

10. The only question of importance, the learned counsel for the petitioner raises is that that since the Process Server forged a document and produced the same before the Court on the basis of which learned Addl. Sub-Collector, Puri took the view that services of summons were sufficient against the complainant and his siblings proceeded with the hearing of the case. Hence as per the provisions of sub-clause (ii) of Clause (b) of sub-

section (1) of Section 195 of the Code, cognizance should not have been taken by the learned S.D.J.M., Puri without a complaint being made by the Court regarding commission of forgery described under Section 463 or punishable under Sections 471//475/476 of the I.P.C. regarding production of such forged documents. It is appropriate to take note of the aforesaid provision.

"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)          xxx    xxx        xxx

        (b) (i)       xxx    xxx xxx

              (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 xxx xxx xxx xxx except on the complaint in writing of that Court, or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.

xxx xxx xxx xxx."

11. Section 340 of the Code provides for the procedure in cases mentioned in Section 195.

12. Explaining the scope of this prohibition or fact the Hon'ble Supreme Court in a three Judge Bench in the case of SACHIDA NAND SINGH AND ANOTHER VS. STATE OF BIHAR AND ANOTHER; (1998) 2 SUPREME COURT CASES 493 has held that Section 195(1)(b)(ii) Cr.P.C. reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471,475,476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. It is undisputed that if forgery has been committed while the document was in the custody of the court, then prosecution can be launched only with a complaint made by that court. Again, if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. A question arises whether in the latter situation production of such document in Court will make any difference. Now even if the clause is capable of two interpretations the narrower interpretation has to be chosen. Provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statue or the context requires otherwise. The Hon'ble Supreme Court further held that it is difficult to interpret Section 195(1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue unsavory consequences. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, one which 9 is capable of causing mischievous consequences should be averted. The Hon'ble Supreme Court further held that it would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records. It must therefore be held that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court.

13. This view has again been reiterated by the Constitution Bench of the Supreme Court in the case of IQUBAL SINGH MARWAH AND ANOTHER VS. MEENAKSHI MARWAH AND ANOTHER; (2005) 4 SUPREME COURT CASES 370 wherein the Hon'ble Supreme Court has approved the ratio decided by the three Judges Bench of the Hon'ble Supreme Court in the case of SACHIDA NAND SINGH AND ANOTHER VS. STATE OF BIHAR AND ANOTHER (supra). The ratio decided by the Constitution Bench of the Hon'ble Supreme Court squarely covers this case. In this case on the allegation of the complainant the investigating agency found it to be prima facie correct that the Process Server in connivance with two witnesses and both the petitioners have prepared documents outside the Court showing that notices were tendered to the complainant and his siblings and they first refused and then accepted the said notice. The later report was produced before the court, on the basis of which the court came to the conclusion that notices are sufficient and case should proceed ex parte against the complainant and his siblings. So apparently the alleged forgery is not within the 10 proceedings of the court, but while purporting to serve notice on the opposite parties in a revenue case pending before the Sub- Collector, Puri. So this Court is of the opinion that the order taking cognizance passed by the learned S.D.J.M., Puri does not suffer from any illegality requiring interference of this Court.

14. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Hence this Court is not inclined to allow the CRLMC and the same is accordingly dismissed.

.........................

S.K.Mishra, J Orissa High Court, Cuttack Dated 7th July, 2017/A.K. Behera.

In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad kinds of cases wherein such power should be exer- cised:

where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the ac- cused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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