Punjab-Haryana High Court
Baldev Singh vs Surinder Mohan And Others on 13 February, 2014
Author: K. C. Puri
Bench: K. C. Puri
Verma Sunil
CRM . M. No. 47802 of 2007 1 2014.02.28 10:15
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM . M. No. 47802 of 2007
Decided on : 13 . 02. 2014
Baldev Singh ... Petitioner
Versus
Surinder Mohan and others ... Respondent
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM : HON'BLE MR. JUSTICE K. C. PURI
Present : Mr. D.S.Kamra, Advocate, for the petitioner.
Mr. Amar Vivek, Advocate for respondent No.1.
None for UT Chandigarh.
K. C. PURI, J.
Accused-petitioner Baldev Singh has directed the present petition under Section 482 of the Code of Criminal Procedure ( in short - the Cr.P.C.) for quashing orders dated 1.10.2011 and 8.1.2002 (Annexures P-4 and P-5) passed by respondent No.2 vide which petitioner was initially summoned upon an application filed by respondent No.1 and later on by subsequent order, a complaint was forwarded by Chief Judicial Magistrate, Chandigarh under Section 340 of the Cr. P. C., to the Court of learned Addl. Chief Judicial Magistrate, Chandigarh (respondent No.3) against the petitioner. Petitioner further prayed for quashing the complaint dated CRM . M. No. 47802 of 2007 2 8.1.2002 Annexure P-6 along with summoning order dated 9.3.2002 (Annexure P-7) along with all subsequent orders in complaint case No.33 dated 31.5.2001 titled as Chief Judicial Magistrate, Chandigarh versus Ajay Kumar and others under Section 340 of the Cr.P.C.
2. The pleaded case of the petitioner is that father of the petitioner had entered into an agreement with respondent No.1 for the purchase of House No. HM-14, Phase II, Mohali and paid the entire amount of Rs.55,000/-, payable at the time of execution of the sale deed after the seller obtained the conveyance deed from PUDA. He was handed over the possession of the property in question. Thereafter, he died and his son i.e., the petitioner came into possession of the said house. Respondent No.1 instituted a suit for possession in the court of civil Judge (Junior Division) Kharar, which upon his application was transferred by order of this Hon'ble Court to the Court of Civil Judge (Senior Division), Chandigarh. It was averred in that suit by respondent No.1 that he had rented out the premises to one Ajay Kumar, a property dealer, who had unauthorizedly sublet the same to the petitioner. In his written statement, the petitioner stated that he was in occupation of the premises not as a sub tenant, but as a prospective owner in part performance of an agreement to sell executed between respondent No.1 and the late father of the petitioner. At the stage of evidence, when the veracity of the agreement to sell stood imminently proved and it became apparent that the case of respondent No.1 would hold no water, he replaced his counsel Shri Tara Chand Gupta with a fresh counsel namely Shri Amar Vivek, Advocate, who acquired a personal interest by entering into a secret deal whereby the property under litigation CRM . M. No. 47802 of 2007 3 was purchased by him from his own client and a flurry of proxy litigation ensued. More than 80 cases were filed inter se respondent No.1 and the petitioner wherein the projection was given that the petitioner being a police officer had usurped the property of a poor helpless retired teacher, who was portrayed as the underdog. Whereas in reality, he was pitted against a much stronger adversary, who repeatedly resorted to manipulation and Machiavellian tactics. Resultantly, even when the petitioner's wife was unlawfully dismissed from service and her writ petition challenging the same stands admitted. Further using his clout, the counsel for respondent No.1 prevailed upon the Presiding Officer of the Civil Court, Kharar. Smt. Neelam Arora to adopt a partisan attitude and when the petitioner complained against the latitude shown by Civil Judge, Kharar, Smt. Neelam Arora to the opposite party, to Hon'ble the Chief Justice of this Hon'ble Court by means of a written complaint as also through successive transfer applications filed before that Court, the District Judge, Ropar and this Hon'ble Court, Criminal contempt proceedings were initiated at the behest of respondent No.1 through the said counsel which are pending. Still further, locus was sought to be acquired by respondent No.1, so as to challenge a declaratory decree granted by the Civil Court, Ludhiana recognizing and endorsing a deed of customary dissolution of marriage between the petitioner and his former spouse (his present spouse was dismissed from service on the allegation of having married a man with a subsisting spouse in violation of Rule 21 of the Government Employees ( Conduct ) Rules, 1966; while the petitioner was exonerated upon the same charge by his department ). This interloping was eventually put to an CRM . M. No. 47802 of 2007 4 end with a severe reprimand by the Hon'ble Supreme Court.
3. It has been further pleaded that , be that as it may, respondent No.1 presented a complaint through Shri Amar Vivek, Advocate addressed by name to members of a Division Bench of this Hon'ble Court, namely Hon'ble Mr. Justice J. L Gupta and Hon'ble Mr. Justice Chalapathi, who treated the same as a writ petition, registering the same as CWP No.13379 of 1996 directed the Sessions Judge, Vigilance, Haryana to raid the premises of one Dhanraj alias Sweetie Mehta, a stamp vendor at Ludhiana and to seize the records on the assertion that the said stamp vendor indulged in corrupt practices, especially in selling of stamp papers in back date. The story set up by respondent No.1 was that the stamp paper upon which the agreement to sell was executed and was in fact purchased recently by the instant petitioner, who had forged the signatures of his late father and respondent No.1 thereon, and that this would stand proved from the register, which allegedly reflected a blank space at the relevant serial no. which pertained to the stamp paper in question (a photocopy of that register had indeed been attached with the said complaint reflecting the blank space). The raid yielded several incriminating documents, but not the said register. However, that photocopy reflecting blank spaces in the register was used to non suit the petitioner right uptill the Hon'ble Supreme Court and consequently, the petitioner has been ousted from his home. The photocopy of the register was obtained by manipulation and covering the relevant entry so as to reflect the blank space and thereafter, the register was destroyed. Though unfortunate the above allegations are not being levelled for the first time in the instant petition but form part of CRM . M. No. 47802 of 2007 5 pleadings between the parties in multifarious proceedings. As a corollary to the above mentioned writ petition, Criminal Misc. Application No. 28407 M of 1999 was filed by respondent No.1, praying for investigation on the basis of a complaint to the effect that the agreement to sell executed between respondent No.1 and the late father of the petitioner was a forged and ante-dated document and that the same had been used in the suit titled as Surinder Mohan versus Ajay Kumar and another in the Court of Smt. Neelam Arora, Civil Judge (Junior Division), Kharar. Hon'ble Mr. Justice T.H.B.Chalapathi recalling that as a member of the Division Bench, took cognizance of the complaint vide order dated 3.12.1999 and directed Senior Superintendent of Police, Ropar to register a case. Consequently, FIR No.26 dated 21.01.2000 was registered at Police Station, Phase I, Mohali under Sections 420, 468, 471 and 120-B of the IPC. While that FIR was still under investigation, by concealing the factum of its existence, based upon a finding returned by Civil Judge (Senior Division), Chandigarh, an application was made to its successor Court under Section 340 of the Cr.P.C., read with Section 195 (1)(b) of the IPC praying that the Court itself lodge a complaint against the petitioner for giving false evidence in the civil suit. Proceeding under section 340 Cr.P.C. could not have been initiated against the petitioner alongwith seven witnesses who deposed as to the veracity of the allegedly forged agreement to sell, along with stamp vendor and the property dealer, defendant No.1 on account of the fact that an FIR already stood lodged in respect of the alleged forged agreement to sell, the existence of which was deliberately concealed, therefore, misleading the Court to act upon the application. Since the CRM . M. No. 47802 of 2007 6 alleged forgery took place at Ludhiana, there is no question of registration of FIR at Mohali but the complaint of respondent No.1 addressed to Senior Superintendent of Police Ropar, alleging that the forged document was used in the Court at Kharar thereby impelling the Court to direct SSP, Ropar to register an FIR. It is alleged that parallel proceedings would not been have initiated by the Court in following the procedure set out under Section 340 Cr.P.C., had respondent No.1 not deliberately concealed the factum of existence of FIR No.26 dated 21.01.2000. Hence this petition.
4. On notice, respondent No.1 appeared and filed reply. He took up preliminary objections that the present petition is based only on disputed questions of facts, which would ordinarily not be adjudicated as these require the appreciation of evidence and material on record. In exercise of extra-ordinary jurisdiction of this Court, this Court normally examines the legality or irregularity in the procedure leading to the filing of a complaint but would not adjudicate the merits or the controversy. The petitioner has however raised only a dust of disputed questions of facts, as on merits and in law, he has no material or documents to draw in support. It is further alleged that the petitioner and his witnesses etc have not only proceeded by the trial Court by way of the complaint Annexure P-6 for the forgery of two documents i.e., an alleged agreement to sell dated 23.6.1990 and an alleged rent note dated 30.9.1989 but also for filing false pleadings and giving false evidence in the court, in support of their various contentions, all of which were found by the courts below to be false, on scrutiny and shifting of the voluminous evidence, through well reasoned and detailed judgments rendered by them. Therefore, the petitioner and others have CRM . M. No. 47802 of 2007 7 been complained against for their overall conduct in the trial of the suit and also for leading false evidence and filing false pleadings through their written statement etc. The leading of the false evidence and filing of the false pleadings in support of the false facts, including the aforesaid alleged documents in instant case, amount to offences relating to administration of justice under Section 193 of the IPC onwards, for which the procedure envisaged under Section 340 of the Cr.P.C., i.e., by lodging of a complaint by court concerned, which has been followed in the instant case. The courts below have commented adversely on their demeanaour and have returned categorical findings of fact to the effect that the petitioner and others gave false evidence in the court. The copies of the judgment dated 17.5.2001 and 9.9.2002 rendered by the courts below which have been upheld right upto the Apex Court culminating in the passing of the order dated 5.7.2004 by the latter, are appended herewith for ready reference. Denying other averments, respondent No.1 prayed for dismissal of the petition.
5. Surinder Mohan moved an application before Additional Civil Judge (Senior Division)-cum-Chief Judicial Magistrate under Section 340 of the Cr.P.C. read with section 195(i)(b) of the IPC for lodging a complaint against the respondents-accused in view of findings in judgment dated 17.5.2001 for forging and fabricating the alleged agreement to sell dated 23.6.1990 and an alleged rent note dated 30.09.1989 and for giving false evidence in the court in the above-mentioned case. Therefore, the then learned Chief Judicial Magistrate, Chandigarh filed complaint against the accused.
CRM . M. No. 47802 of 2007 8
6. Aggrieved with the aforesaid complaint and order dated 8.1.2002, Baldev Singh preferred revision against the said order.
7. The learned Additional Sessiones Judge, Chandigarh vide order dated 03.07.2007 dismissed the revision petition.
8. Feeling dissatisfied with the aforesaid orders, the present petition has been directed by the accused-petitioner.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
10. The present petition under Section 482 of the Cr.P.C, virtually amounts to second revision and the second revision in accordance with the provisions of Criminal Procedure Code is not maintainable.
11. It is not disputed during the course of argument that civil court has given a definite finding that agreement in favour of petitioner is a forged and fabricated document. That finding has been affirmed by the Appellate Court and even this Court and the Hon'ble Apex Court has not interferred in the finding referred to above. The learned counsel for the appellant has submitted that document i.e., agreement to sell which is alleged to have been forged was not forged during the course of proceedings before the Civil Court or any other Court. So, the complaint under Section 340 of the Cr.P.C., is not maintainable at the instance of the Court.
12. It is contended that Constitutional Bench of Hon'ble Apex Court in authority Iqbal Singh Marwah and Another vs. Meenakshi Marwah & Anr. reported as 2005(2) R.C.R. (Criminal) page 178 that CRM . M. No. 47802 of 2007 9 when a forged Will tendered in evidence before the Court, aggrieved party allowed to lodge a criminal complaint against person who has forged the Will. Bar of Section 195(i)(b)(ii) of the Cr.P.C., is not applicable as the document was not forged while the same was in custody of the Court but the document was already forged when produced in evidence However, in order to properly appreciate the said argument, relevant provisions of Section 195 (i)(b)(ii) of the Cr.P.C. are reproduced as under :-
(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) xx xx xx xx xx
(iii) xx xx xx xx xx
(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.
13. So, from the bare reading of the said provisions, it is clear that in case document has been forged during the course of proceedings of the Court in that case, a complaint can be filed by the Court itself and not by any other person. There is no dispute to the proposition of law, referred to above and the law laid down by the Constitutional Bench in Iqbal Singh Marwah's case (supra). However, the controversy in the present case is CRM . M. No. 47802 of 2007 10 whether the Court can file complaint if the document is forged outside the court but was produced in the Court. For that purpose, the relevant provisions of Section 340 of the Cr.P.C., are reproduced as under :-
340. Procedure in cases mentioned in section 195.
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,-CRM . M. No. 47802 of 2007 11
(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 by such officer of one court as one court may authorise in writing in this behalf.
(4) In this section, "Court" has the same meaning as in section
195.
14. The said controversy has been decided by the Full Bench of this Court in authority reported as Madan Lal vs. Punjab and Haryana High Court reported in 1999(2) RCR (Criminal) page 223 in that case also, the controversy was that when document is forged outside the Court but produced in the Court in that case Full Bench held that the Court where the forged document has been produced has the authority to lodge prosecution. The contention raised by the other counsel that in view of Section 195(1)(b)(ii) to the effect that only document which has been forged in the Court and only that Court can file complaint, was not accepted by the Full Bench of this Court in Madan Lal's case (supra).
15. Again Hon'ble Apex Court in C.P. Subhash vs. Inspector of Police Chennai and others reported in 2013 (5) RAJ page 472 the Hon'ble Apex Court in para No.12 held as under :-
"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."
16. The constitutional Bench of Apex Court in Iqbal Singh Marwah's case (supra) has nowhere held that Court cannot file complaint under Section 340 of the Cr.P.C. where the documents have CRM . M. No. 47802 of 2007 12 been forged outside the Court premises before its production. Otherwise also, Courts are not powerless. They have the remedy to proceed with the forgery committed in respect of document produced in the Court. Counsel for the petitioner could not point out a single authority in which it is mentioned that if a document is forged outside the Court, in that case Court cannot file a complaint. So, the above said contentions are meritless.
17. The other contentions raised by the counsel for the petitioner is that the FIR in respect of same offence and occurrence has been registered. Learned counsel for the petitioner has submitted that in view of Section 300 clause (vi) of the Cr.P.C., the second case in respect of the same offence cannot be allowed to proceed with.
18. In reply to the above noted submission, learned counsel for the respondents has submitted that taking a false plea in the written statement and pleading a forged document itself is a separate offence.
19. Section 193 of the Cr.P.C. deals with the punishment of furnishing false evidence in a judicial proceedings or fabricating false evidence for the purposes of being used at any stage of the judicial proceedings. Section 196 of the Cr.P.C. deals with the using evidence known to be false. It is further submitted that criminal case has not even started. The proceedings under Section 340 Cr.P.C. are at final stage. So, it is submitted that it is not a question of double jeopardize.
20. Counsel for the respondent has further submitted that the appellant has neither been convicted nor acquitted in the criminal FIR case. So, the provisions of Section 300 including Section 300 (vi) of the Cr.P.C., are not applicable.
CRM . M. No. 47802 of 2007 13
21. I have considered the submissions made by both the sides and have gone through the records of the case.
22. Gujarat High Court in authority Ishwarbhai Keshavbhai Patel vs. State of Gujarat reported in 2003 Criminal Law Journal page 3936 held that where the complaint is filed under Section 340 of the Cr,P.C. before the Civil Court to take appropriate steps. Order of trial Court to undertake preliminary enquiry on the basis of said applications and simultaneous FIR filed before Police Investigating Officer is not barred.
Section 300 (clause I) of the Cr.P.C. is reproduced as under :-
"300. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
23. Section 300 (1) of the Cr.P.C. envisaged that if a person is convicted or acquitted in respect of offence, in that case, he cannot be tried again. In the present case, admitted position is that petitioner has not been either convicted or acquitted in the said case. Clause (2) of Section 300 of the Cr.P.C., envisaged that a person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any CRM . M. No. 47802 of 2007 14 distinct offence for which a separate charge might have been made against him. So, in these circumstances, the above said argument raised by the counsel for the petitioner are without any merit and the same stands repelled.
24. Learned counsel for the petitioner has further submitted that only Civil Court can make the complainant. However, in the present case, the complaint has been made by Addl. Chief Judicial Magistrate. Initially the complainant filed complaint for proceeding under Section 340 of the Cr.P.C., however, vide order dated 8.1.2001 Court of learned Chief Judicial Magistrate, Chandigarh reviewed and set aside its earlier order Annexure P-4 and passed the inquiry as envisaged under section 340 of the Cr.P.C. So, the Addl. Chief Judicial Magistrate cannot review its own order.
25. I have considered the said order but do not find any force in the submission of the learned counsel for the petitioner.
26. The power to review its own order is available as the Civil Court has decided the issue of forgery and not the criminal Court. This aspect of the case has been further elaborately dealt in by Gujarat High Court in authority Ishwarbhai Keshavbhai Patel's case (supra). So, in these circumstances, the above said arguments are without any substance.
27. Otherwise also, the allegations made in complaint under Section 340 of the Cr.P.C. and FIR case are not same and as such the provisions of Section 300 of the Cr.P.C. could not be attracted on that account.
CRM . M. No. 47802 of 2007 15
28. The complaint was filed by the Civil Court and under Section 151 of the CPC, the Civil Court has inherent powers to pass any order in the interest of justice. The mere fact that Chief Judicial Magistrate, was also working as the Additional Civil Judge (Senior Division) is not a ground to take the plea that Civil Court has not filed the complaint and Chief Judicial Magistrate filed the complaint. The fact remains that document was not forged in the Court of Chief Judicial Magistrate but in the Court of Additional Civil Judge (Senior Division) and the complaint has been filed by the Civil Judge. So, the above said contentions are meritless.
29. Learned counsel for the appellant has further submitted that inquiry has not been conducted by the trial Court as envisaged under Section 340 of the Cr. P. C. So, the summoning of the petitioner is bad.
30. I have considered the said order but do not find any force in the said submission.
31. No further inquiry was required to be conducted when there was definite finding by the Civil Court and District Judge, in respect of concurrent finding that agreement in question has been forged. That decision of Civil Court was admittedly affirmed by the Hon'ble Apex Court. So, in these circumstances. No further inquiry under Section 340 of the Cr.P.C., was required.
32. No other point has been urged or raised before me.
33. In view of the above discussion, the petition is without any CRM . M. No. 47802 of 2007 16 merit and the same stands dismissed.
34. A copy of this order be conveyed to the trial Court for strict compliance.
( K. C. PURI )
February 13 , 2014 JUDGE
sv