Andhra HC (Pre-Telangana)
Inuganti Venkata Ramana Murthy And Ors. vs Tentu Sanyasi Naidu And Anr. on 1 September, 1992
Equivalent citations: 1993(1)ALT197
ORDER M. Ranga Reddy, J.
1. This petition is filed by the accused in C.C.No. 37/92 on the file of Addl. Judicial First Class Magistrate, Bobbili to quash the said proceedings against them on the ground that the same is barred by provisions of Section 195 Cr.P.C.
2.The short point that falls for consideration in this revision is whether the complaint filed by the first respondent for offences under Sections 193,196,201, 468 and 471 IPC against the petitioners under Section 200 Cr.P.C. is maintainable.
3. As it could be seen from Section 2(d) of Section 190 Cr.P.C. that general rule is that any person can set the law in motion by filing a complaint. Certain exemptions are, however, created by statutes. Section 195 and 198 Cr.P.C. are examples of such exemptions. Section 195 prohibits a court from taking cognizance of certain offences unless and until a complaint has been made by some particular authority or person. This section does not lay down any rule of procedure. It only creates a bar and says that unless some requirements have been complied with, no court shall take cognizance of offences described in that section. The relevant provisions of Section 195 reads as follows:
Section 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) (i).............................................
(ii) ..................................................
(iii) ..................................................
(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, 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) except of the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
Thus, in reality it lays down that offence therein referred to shall not be deemed to be any offence at all, except on the complaint of the persons or the courts therein specified. Section 195 Cr.P.C. describes the offence in respect of which a complaint is necessary and Section 340 Cr.P.C. prescribes the procedure for making a complaint by a Court. The provisions of Section 195 Cr .P .C. are mandatory and the court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is complaint in writing as required by this section. The provisions of Sections 195 and 340 of Cr.P.C. are really intended to prevent indiscriminate prosecutions under various sections mentioned therein. So, when prosecution has been instituted for an offence of the kind requiring the previous complaint, sanction or order of a particular authority, they will take their course in respect of any offence which the facts disclose.
4. Now, at this stage it would be relevant to advert to the facts and circumstances under which the question had arisen for consideration. The first respondent herein had filed a complaint, before the Addl. Judicial first Class Magistrate, Bobbili, in C.C.No. 37/92 against the petitioners herein and the learned Magistrate after recording the sworn statement had taken it on file for offences punishable under Sections 193, 196, 209, 468 and 471 IPC. In that complaint it was alleged by the first respondent that the first petitioner herein had brought into existence an aggrement of sale purported to have been executed by him, agreeing to sell some immovable property, in collusion with petitioners 2,3 and 4 and on the basis of that agreement he had instituted a suit in O.S.No. 22/91 on the file of the Subordinate Judge, Bobbili against the respondent for specific performance and another suit in O.S.No. 32/91 on the file of Munsif Magistrate, Bobbili for injunction. The second petitioner herein is said to be the scribe of the document and petitioners 3 and 4 are said to be the attestors of the same. Thus, it is clear that two suits are pending in the Civil Court based on the document which is alleged to be a forged one and it is in respect of that document only the first respondent had filed a complaint under Section 200 Cr.P.C.
5.Relying on the provisions of Section 195 Cr.P.C as extracted above, the accused in the criminal case have filed this petition to quash the proceedings in C.C.No. 37/92 on the file of Addl. Judicial First Class Magistrate, Bobbili stating that the complaint is not maintainable. The learned counsel for the first respondent conceded that in so far as offences relating to Sections 193,196,209, 471 IPC are concerned they are attracted by the provisions of Section 195 Cr.P.C. and that therefore a complaint in respect of those offences is not maintainable. But, however, he contended that the first respondent can pursue his complaint so far as it relates to the offence under Section 468 IPC as the provisions of Section 195 Cr.P.C. is not a bar for maintaining a complaint in respect of that offence. In support of this contention the counsel for the respondent relied on a decision of this court in K. Ramana v. Station House Officer, . In that case a complaint was filed for offences punishable under Sections 193, 423, 465 to 468 IPC. An objection as to the maintainability of the complaint was raised and an application under Section 482 Cr.P.C. for quashing the proceedings was filed. The learned judge found that complaint under Sections 193,465 to 467 IPC alone are hit by the provisions of Section 195 Cr.P.C. and prosecution for those offences is not maintainable in view of the provisions of Section 195 Cr.P.C. and consequently quashed the complaint to the extent of offences under those sections. But, so far as it relates to the offences under Sections 423 and 468 IPC, he found that the complaint is maintainable. Relying on this decision the learned counsel for the respondent contended that he can maintain the complaint under Section 468 IPC.
6.Earlier to the decision referred to above there was another decision of this court reported in Vishnu Kumar v. State of Andhra Pradesh, 1981 (1) An.W.R. 358 in which the question whether an offence under Sec .468 of IPC is attracted by the provisions of Section 195 Cr.P.C. It would appear that this decision was not brought to the notice of the court while deciding the case referred to above. In that decision the learned judge observed that although the offence punishable under Section 468 IPC, is not specifically mentioned in Section 195 (1) (b) (ii) Cr.P.C, nevertheless, having regard to the opening phrase "of any offence described in Section 463 I.P.C." the offence punishable under Section 468 IPC would also come within the category of offences described in Section 463 Cr.P.C. So in that decision it was held that Section 468 IPC is also one of the offences described in Section 463 IPC and that therefore provisions of Section 195 (1) (b) (ii) Cr.P.C. is applicable and that a complaint by private individual is not maintainable.
7. Apart from that the language of Sec .195 (1) (b) (ii) Cr.P.C. is very significant, while referring to Sections 471,475 and 476 IPC it used the word "punishable" but in the case of Section 463 IPC the words used are the "offence described in Section 463". The Supreme Court in its decision in S.L. Goswami v. M.P. High Court, held that an offence under Section 466 IPC is an offence which falls within the description of Section 463 I.P.C. and consequently attracted by provisions of Section 195 Cr.P.C. There is another decision of Allahabad High Court in Rampal Singh v. State of U.P., 1982 Crl.L.J. 424. There it was observed as follows:
"Section 463 of the Penal Code merely defines what forgery is, but the punishment for persons committing forgery in various circumstances and conditions has been provided in Sections 465 to 469 of the I.P.C. In the context an offence punishable under Section 468 IPC would certainly be an offence described in Section 463 of I.P.C. and would be covered by the provisions of Section 195 (1) (b) (ii) of the new Code, 1974".
Apart from that in a decision reported in 1975 Crl.Law Journal at page 575 it was held that when the primary offence is under Section 186 IPC cognizance of offence under Sections 323,324 and 53 are not permissible. Further, the provisions of Section 195 Cr.P.C. cannot be avoided by reducing a charge in respect of offences. mentioned in the section to some other offences and thus avoid the necessity of the complaint by the court. It should be remembered that when the offences are so intermingled with each other that it is not possible to separate them for trial in respect of offences which does not attract the provisions of Section 195 Cr.P.C., it is not open to the court to proceed with the trial of offences by dropping the charges for the offences which attracts Section 195 Cr.P.C. (Vide 1983 Crl.L.J. page 424 (All). The Supreme Court has cautioned that in cases where in the course of same transaction offence for which no complaint by the court is necessary under Section 195 (1) (b) and an offence for which a complaint of the court is necessary under that sub-section are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned should proceed. (Vide ).
8. Here in this case, the first petitioner has filed two civil suits on the basis of agreement of sale. While those suits are pending, the first respondent has filed a complaint, the maintainability of which is challenged in these proceedings. Forgery is described in Section 463 Cr.P.C. Sections 465 to 469 provided for punishment of forgery of various documents and under various circumstances. Hence, under the circumstances and in view of the decisions referred to above, I am of the opinion that offence under Section 468 IPC is one described under Section 463 IPC and as such it is attracted by the provisions of Section 195 Cr.P.C. and that therefore the complaint is not maintainable. The Criminal Petition is accordingly allowed and the proceedings in C.C.No. 37/92 on the file of the Addl. Judicial First Class Magistrate, Bobbili are hereby quashed.