Rajasthan High Court - Jodhpur
Satya Narayan & Ors vs State & Ors on 25 May, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1361 / 2007
1. Satyanarain S/o Shri Mahadev Prasad, by caste Agarwal
(Bagla), Resident of Churu, presently residing at Kolkata.
2. Shiv Bhagwan S/o Shri Ram Narayan, by caste Agarwal
(Goyanka), resident of Churu, presently residing at Kolkata.
3. Gauri Shankar S/o Shri Rameshwar Lal, Maheshwari (Biyani),
resident of Churu, presently residing at Kolkata.
4. Navratan Mal S/o Shri Kishori Lal Agarwal (Goyanka),
resident of Churu, presently residing at Kolkata.
5. Gopal Sarda S/o Shri Mal Chand Sarda, by caste
Maheshwari, resident of Churu, presently residing at Kolkata.
6. Chiranji Lal Agarwal S/o Shri Amolak Chand Agarwal,
resident of Churu, presently residing at Kolkata.
petitioners No.1 to 6 are the Trustees of Churu Charitable
Trust, A-1, Alipur Revenue, Kolkata (WB)
7. Shri Niwas Mandawewala S/o Shri Rukma Nand
Mandawewala, by caste Agarwal, resident of Churu.
----petitioners
Versus
1. State of Rajasthan.
2. The learned trial Court.
3. Pradeep Kumar S/o Late Shri Bajrang Lal, by caste Swami,
aged 40 years, resident of Ward No.5, Subhash Chowk,
Churu.
----Respondents
_____________________________________________________
For petitioners(s) : Mr. Anand Purohit, Sr. Advocate with Mr.
O.P. Sangawa
For Respondent(s) : Mr. L.R. Uphadhyay, P.P.
For Complainant(s): Mr. N.L. Joshi.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 25/05/2017 The instant revision petition under Section 397/401 Cr.P.C. filed by accused-petitioners challenges order dated 5 th of (2 of 16) [CRLR-1361/2007] December 2007, passed by Chief Judicial Magistrate, Churu (for short, 'learned trial Court'), in Criminal Original Case No.563/2007 (Ganga Singh Shekhawat Vs. Satyanarain & Ors), as well as order dated 4th of December 2007, passed by learned Sessions Judge, Churu in Criminal Misc. Case No.210/2007 (Bajrang Lal Swami Vs. Satyanarain & Ors.), with the prayer for dismissal of complaint filed against them and their consequential discharge.
The facts, apposite for the purpose of this petition, are on 05.12.2007 a complaint was filed by one Bajranglal (since deceased), now represented by his son Pradeep Kumar, in the Court of learned trial Court and on that basis inquiry was conducted under Section 340 Cr.P.C. In the complaint, it was inter alia stated that petitioners/accused filed a civil suit No.17/04 (Suit No.106/89, 23/94) in the Court of District Judge, Churu which was subsequently transferred to the Court of learned Addl. District Judge (Fast Track), Churu and was decreed. Later on, that Court abolished and the Court of District Judge, Churu, being the successor Court, complaint was submitted before it. It was alleged in the complaint that in the suit petitioners/accused had filed copies of pattas of some lands, which were not subject matter of dispute in Suit No.17/2004, and also produced forged gift deed, and obtained a decree in their favour. The complaint echoed that a land in village Churu, known as Ramkaran Ka Kua, measuring 38880 Sq. Yds., in respect of which a patta was issued on Migsar Sudi Tritya of Samvat 1921, was covered by a Patta of Samvat 1921, issued by erstwhile State of Bikaner in the names of (3 of 16) [CRLR-1361/2007] Ram Karan, Kunji Lal and Bihari Lal for the purposes of construction of well and step-wells, out of which a triangular piece of land, measuring 10880 Sq.Yds was purchased for consideration and got converted by the patta-holders in Samvat year 1924. However, no house could be constructed and land remained as it was. The complaint further mentioned that subsequently Churu Charitable Trust requested Land Acquisition Officer (S.D.O), Churu for acquiring and allotting land of Ramkaran Ka Kuwa and Badi for girls college, hostel and playground on which land acquisition proceedings were initiated and notice was issued to Satyanarain, the legal heir of Kunjilal, Biharilal and Ramkaran, on which Satyanarain surrendered the land of both pattas to State and received compensation in lieu thereof. The State Govt. resuming the land took possession of it from Narayanram and allotted the land to Trust. Accordingly, the pattas issued in Samvat 1921 and 1924 stood cancelled and the Trust got constructed a Girls College, hostel and playground on the said land but also included the land of Ramkaran Ka Kuwa and Badi in the land belonging to the College. The complaint further states that after about lapse of three years, petitioners No.1 & 2 got executed two gift deeds from Satyanarain; one in respect of authorization made in their favour to receive the amount of compensation from State Government and another in connection with the land belonging to Bajrang Lal, for which no patta existed in the name of Satyanarain. According to complainant, on the basis of aforesaid gift deeds, the petitioners in connivance with one Bhagwati Prasad instituted Suit No.17/2004 on 20.11.1989 in the Court of District Judge, Churu (4 of 16) [CRLR-1361/2007] through Sri Niwas, petitioner No.7 herein, as power of attorney of rest of the petitioners/accused for getting possession of land, however, original pattas and gift deeds were not filed with the suit. Later on, during recording of evidence of petitioner No.2 Shiv Bhagwan, on 13.03.1997, he produced and exhibited the certified copies of the pattas of Samvat 1921 and 1924, which were already cancelled. In this way, copies of alleged cancelled pattas were filed with the intention to defraud the Court. Thus, petitioner No.2 Shiv Bhagwan and Petitioner No.7 Sri Niwas deliberately and intentionally gave false evidence and accused Satyanarain and Shiv Bhagwan fraudulently got executed gift deeds dated 12.04.1986 from deceased Satyanarain Poddar and, thereafter producing the same in evidence obtained a decree from Court.
In view of above complaint, District & Sessions Judge, Churu, concluded that a prima facie case against petitioner/accused is made out under various Sections of IPC and directed for filing a complaint against petitioners before learned trial Court for taking cognizance against them and their trial before that Court vide order dated 04.12.2007 and on that basis learned learned trial Court without giving any notice of the complaint to the petitioners, on 05.12.2007, took cognizance against nine accused persons, including the present seven petitioners and two others for offences under Sections 193, 196, 467 and 468 and 471 read with Section 120-B IPC and summoned them for trial vide order dated 05.12.2017, which orders are under challenge in this revision petition.
(5 of 16) [CRLR-1361/2007] Learned Senior Counsel for the petitioners, Mr. Anand Purohit, submits that the learned trial Court has committed manifest error of law in taking cognizance against petitioners inasmuch as there is no recital that any document was custodia legis, which is pre-requisite for initiation of proceedings under Section 340 Cr.P.C. Mr. Purohit would contend that the learned trial Court by the impugned order has ex-facie abused the process of the Court, and therefore, entire proceedings pursuant thereto, if allowed to continue, would result in grave miscarriage of justice. Learned Senior Counsel has strenuously urged that though the complaint was lodged by Sessions Judge but in fact the opposite party himself is not interested to pursue the matter and a compromise has been arrived at between the parties, therefore, in the interest of justice it would be inappropriate to allow the proceedings to continue. Learned counsel has urged that taking cognizance by the trial Court against petitioners is a glaring example of exercising powers in clear negation of Section 340 Cr.P.C. Lastly, learned counsel for the petitioners has argued that impugned order is per se vulnerable for being bereft of reasons as to why the learned trial Court felt it expedient in the interest of justice to hold inquiry under Section 340 Cr.P.C. In support of his various arguments, learned counsel, Mr. Purohit has placed reliance on following legal precedents:-
Sachida Nand Singh & Anr. V/s. State of Bihar & Anr. [(1998) 2 SCC 493].
Iqbal Singh Marwah & Anr. V/s. Meenakshi Marwah & Anr. [(2005) 4 SCC 370] (6 of 16) [CRLR-1361/2007] Learned Public Prosecutor, Mr. Upddhyay, has opposed the petition in general.
Learned counsel for Mr. Pradeep Kumar, the legal heir of original complainant Bajranglal, on instructions, has showed inclination not to pursue the matter as a compromise has already been arrived at between the parties and the matter has already been settled.
Heard learned counsel for the parties and perused the materials available on record.
The question sought to be raised by the petitioners, in the instant petition, requires meticulous examination for tracing out the element of abuse of the process of Court/illegality and impropriety in passing order by District Judge, Churu to prosecute the petitioners and pursuant thereto as per inquiry taking cognizance by learned trial Court and further proceedings including issuance of summons for trial.
The order of learned trial Court now merits examination on the pre-requisites envisaged under Section 340 Cr.P.C. A bare reading of Section 340 Cr.P.C. makes it abundantly clear that any preliminary inquiry initiated thereunder has to be confined to offences referred to in clause (b) of sub-section (1) of Section 195 Cr.P.C. That apart, initiation of an inquiry in respect of any offence (7 of 16) [CRLR-1361/2007] described under Section 463 or punishable under Section 471, 475, or Section 476 IPC is permissible 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. In that background, if the finding recorded by learned trial Court is properly construed then it is clear and unequivocal that there is no whisper to draw an inference that petitioners have allegedly committed such offence in respect of a document produced or given in evidence in the proceeding before the Court. Admittedly, documents produced in the Court were not originals but certified copies and therefore it is obviously not possible to infer any sort of forgery with such documents when these were custodia legis.
This being the situation, even prima facie it is beyond comprehension to castigate the petitioners for offences referred to under Section 195(1) Cr.P.C.
Legal position is no more res integra that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and that all other modes of performance are necessarily forbidden. This sound legal proposition is founded on maxim "Expressio unius est exclusio alterius" based on the assumption of legislative omniscience, because it would make sense only if all omissions in the legislative drafting were deliberate.
Upon conjoint reading of both the sections and after spelling out the cumulative legislative intent, the legal position has no (8 of 16) [CRLR-1361/2007] more remained fluid inasmuch as proceedings under Section 340 Cr.P.C. can be resorted to by the Court on an application or suo moto when it is considered expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement/document, which may be immaterial.
The law also mandates that endeavour of the Court in such matters must reflect the requisite judicial deliberation and not merely mechanical and superficial approach.
A perusal of the order of learned trial Court and the recitals contained therein reveals that no case much less a prima facie case is made out against petitioners yet cognizance against them was taken and summons were issued without any basis or evidence, in a hot haste and under the influence of superior Court on the very next day even without giving a notice of the complaint to the petitioners and calling an explanation from them which clearly spells out that learned trial Court has proceeded to take cognizance and summoned the petitioners in excess of its jurisdiction against the settled principles of law. One more glaring fact, which cannot lose sight of this Court, is that cognizance was taken against some persons who had died long back. Furthermore, the order passed by learned trial Court makes it crystal clear that while castigating the petitioners for the alleged offences, it has not recorded any finding worth the name that public document is forged when it was custodia legis. As a matter of fact, it is rather difficult to fathom that petitioners can be prosecuted and penalized for alleged offences in absence of (9 of 16) [CRLR-1361/2007] factum of custodia legis regarding public document in question.
This sort of situation has per se rendered the impugned order vulnerable.
Supreme Court, in case of Sachida Nand Singh (supra), while harmoniously construing Section 340(1) and 195(1)(b)(ii) Cr.P.C., observed that there must be allegation that an offence described in Section 463 IPC or any other offence punishable under Section 471, 475, 476 IPC has been committed by a delinquent and that such offence has been committed in respect of a document produced or given in evidence in any proceeding in any Court.
The Court held:-
6. A reading of the clause 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. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that 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. If so, will its production in a court make all the difference?
7. Even if the clause is capable of two interpretations we are inclined to choose the narrower interpretation for obvious reasons. Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint is to that extent curtailed. It is a well-
recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive (10 of 16) [CRLR-1361/2007] strict interpretation unless the statute or the context requires otherwise (Abdul Waheed Khan v. Bhawani). The Court elucidated an interlink between Sections 340(1) and 195(1)(b) and observed that the scope of preliminary inquiry envisaged under Section 340(1) is to ascertain as to whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. Emphasizing the factum of custodia legis, the Court held:-
9. As Section 340(1) of the Code has an interlink with Section 195(1)(b) it is necessary to refer to that sub-
section in the present context. The said sub-section reads as follows:
"340. When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest 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."
10. The sub-section puts the condition that before the Court makes a complaint of "any offence referred to in clause (b) of Section 195(1)" the Court has to follow the procedure laid down in Section 340. In other words, no complaint can be made by a court regarding any offence falling within the ambit of Section 195(1)(b) of the Code (11 of 16) [CRLR-1361/2007] without first adopting those procedural requirements. It has to be noted that Section 340 falls within Chapter XXVI of the Code which contains a fasciculus of "Provisions as to offences affecting the administration of justice" as the title of the chapter appellates. So the offences envisaged in Section 195(1)(b) of the Code must involve acts which would have affected the administration of justice.
11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.
12. 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.
xxx
23. 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. Accordingly we dismiss this appeal.
The aforesaid view is further reiterated and confirmed by a Constitution Bench of Supreme Court in Iqbal Singh Marwah (supra). The Court, after examining the scheme of statutory provision, has observed:
10. The scheme of the statutory provision may now be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is
-- "Of Contempts of the Lawful Authority of Public Servants". These are offences which directly affect the functioning of or discharge of lawful duties of a public (12 of 16) [CRLR-1361/2007] servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as -- "Of False Evidence and Offences Against Public Justice". The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "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" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court.
The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 CrPC. This indicates that clause (b)
(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court.
11. Section 195(1) mandates a complaint in writing to the court for taking cognizance of the offences enumerated in clauses (b)(i) and (b)(ii) thereof. Sections 340 and 341 CrPC 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 Edn., pp. 207, 209.) The fact that the procedure for filing a complaint by court has been provided in Chapter XXVI dealing with offences affecting (13 of 16) [CRLR-1361/2007] administration of justice, is a clear pointer to 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.
Finally, while answering the reference, the Constitution Bench reiterated the principles propounded in Sachida Nand Singh (supra) and held:-
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) CrPC 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.
Supreme Court, in a later judgment, in case of Rugmini Ammal (Dead) by LRs. Vs. V. Narayana Reddiar & Ors. [(2007) 12 SCC 611], reiterated the same principle for initiation of proceeding under Section 340 Cr.P.C.
Now, adverting to offence under Section 193 IPC and other offences under the Penal Code, mentioned in Section 195(1)(b)(i), suffice it to observe that learned trial Court, while passing its order, has not recorded a finding of any prima facie case and deliberate falsehood on a matter of substance. Therefore, sans reasonable foundation for the charge and expediency for initiation of proceedings in the interest of justice, the impugned order is clearly vitiated in law.
(14 of 16) [CRLR-1361/2007] My aforesaid view is also fortified by a judgment of Division Bench of Delhi High Court in Indraprastha Power General Co. Ltd., Vs. Faheem Baig [2015 (148) DRJ 167], wherein the Division Bench has held:
"Whether or not prosecution is expedient in the interest of justice has to be determined with reference to the facts and circumstances of each case. The question whether it is worthwhile in public interest or not to prosecute can be decided even before conducting an enquiry under Section 340 of the CrPC. The Supreme Court in Pritish Vs. State of Maharashtra:
(2002) 1 SCC 253 held that hub of Section 340 is formation of an opinion by the Court that it is expedient in interest of justice that an enquiry should be made into an offence which appears to have been committed;
in order to form such an opinion, the Court is empowered to hold a preliminary enquiry; it is not peremptory that such a preliminary enquiry be held; even without such preliminary enquiry the Court can form such an opinion; the purpose of the preliminary enquiry is only to find whether it is expedient in the interest of justice to enquire into the offence which appears to have been committed. It is not every false declaration or statement that is intended to be the subject matter of prosecution. Reference in this regard can be made to Rugmini Ammal Vs. Narayana Reddiar:
(2007) 12 SCC 611. The purpose of Section 340 CrPC is to provide a safeguard against vexatious or frivolous prosecution. Section 340 is not permitted to be employed as handmaid of private persons to achieve their revengeful attitude against another person. Care has to be taken that a Court of law is not employed as a tool by litigants for achieving their own ends. The Court has to see whether prosecution is undertaken in the interest of justice and not to satisfy the private grudge of litigant. Before setting the criminal law into motion the Court has to exercise great care and caution and has to arrive at a satisfaction that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution is to be directed unless there is reasonable probability of conviction. The legislature by using the words "appears to have been committed" in Section 340 of the CrPC has shown an intention that there must be sufficient material before the Court to show that an offence within the meaning of Section 340 of the CrPC is likely to have been committed. Proceedings under (15 of 16) [CRLR-1361/2007] Section 340 of the CrPC are not to be resorted to, to hamper the fair trial of a civil dispute."
While Legislature has conferred discretion on a Court to initiate proceedings under Section 340 Cr.P.C. but in totality, I feel persuaded to record my indignation that before initiation of the proceedings under Section 340 Cr.P.C. by the learned trial Court, there was no proper judicial deliberation, as the same were taken at the instance of District Judge, Churu and that too without issuing any notice to the accused-petitioners on the very next day of the order passed by District Judge, Churu. Thus, initiation of proceedings under Section 340 Cr.P.C. against petitioners is per se a glaring example of abuse of the process of the Court and it has become imperative for this Court to exercise revisional jurisdiction ex debito justitiae to upset the impugned order for securing ends of justice.
A very significant fact that legal heir of original complainant Pradeep Kumar has settled dispute with the petitioners and entered into compromise is yet another mitigating factor underplaying alleged expediency to continue proceedings in the interest of justice. Therefore, keeping in view peculiar facts and circumstances of the case, I feel persuaded to exercise revisional jurisdiction in the matter to annul impugned orders as well as entire proceedings.
(16 of 16) [CRLR-1361/2007] The upshot of the above discussion is that instant criminal revision petition is allowed, impugned orders and entire proceedings against the petitioners pursuant thereto are hereby quashed and set aside.
(P.K. LOHRA)J.