Allahabad High Court
Ram Hari Singh And 3 Others vs State Of U.P. And Another on 21 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgement Reserved on 23.09.2019 Judgement Delivered on 21.10.2019 Court No. - 65 Case :- APPLICATION U/S 482 No. - 35944 of 2015 Applicant :- Ram Hari Singh And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Praveen Kumar Giri,Ishan Deo Giri Counsel for Opposite Party :- G.A.,Manik Chandra Yadav Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Ishan Deo Giri, learned counsel for the applicants, Sri Manik Chandra Yadav, learned counsel for the O.P. No. 2 and Sri Attreya Dutt Mishra, learned A.G.A. for the State.
2. This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the summoning order dated 22.02.2013 passed by Judicial Magistrate, Court No. 18, Azamgarh in Criminal Complaint No. 3593 of 2012 (Rajendra Vs. Ram Hari Singh & Others) under Section 466 I.P.C. read with Section 109 I.P.C. It is further prayed to quash the order dated 01.09.2015 passed by Additional Session Judge, Court No. 5, Azamgarh in Criminal Revision No. 48 of 2013 (Ram Hari Singh & Others Vs. State of U.P. & Another). It is further prayed that the proceedings of Criminal Complaint No. 3593 of 2012 be quashed.
3. The prosecution case as mentioned by the complainant/O.P. No.2 is that there is enmity between him and the accused applicants. Earlier one Original Suit No. 100 of 1987 by the name Rajbali Vs. Shiv Mangal and others (Shiv Mangal is father of the accused applicants) was contested in which in terms of compromise, judgement and decree was passed where with Commissioner Map was also annexed which is paper no.16 K-2. In the said Commissioner Map, interpolation was made by the applicants after final judgement in the said case in respect of channel (naali). After the commission of said fraud in the said map, the accused applicants filed another Original Suit No. 508 of 1995 against O.P. No.2 and one Ramadhar stating therein that as per the compromise in earlier Original Suit No. 100 of 1987, the applicants were not to flow their rain water through the constructed channel but now the O.P. No.2 was creating obstruction therein and wanted to destroy the said channel (Nali). The allegation made by the O.P. No.2 is that the said map which was part of decree dated 22.03.1993 was tampered with and, thereafter in Civil Suit No. 508 of 1995, the stay order was procured from the Civil Court by the accused applicants, hence on the basis of that fraud, they have committed an offence under Section 466 I.P.C. read with Section 109 I.P.C.
4. The trial court has summoned the accused applicants after recording statement of O.P. No.2 under Section 200 Cr.P.C. and that of P.W.1, Jagtu Yadav under Section 202 Cr.P.C. observing in the impugned order that on the basis of statements of these witnesses along with perusal of affidavit, a photocopy of the enquiry report, letters sent to S.S.P., Azamgarh along with its receipt, photocopy of confidential enquiry report and the order dated 2.06.1997 passed by the District Judge in Misc. Case No. 322 of 1997, Rajendra Singh Vs. Lalsu, there was sufficient evidence available to summon the accused persons under the above-mentioned sections.
5. A Revision was preferred against the said summoning order which has been decided by the Revisional Court vide order dated 01.09.2015 in Revision No. 48 of 2013 which was preferred by the accused applicants which too has been dismissed. It would be pertinent to mention here the grounds taken before the Revisional Court and the finding on the points raised before it to have assistance in the present proceedings.
6. The said Revisonal Court's order reveals that a plea was taken before it that applicants could not have been summoned as the proceedings were barred by Section 195 of Cr.P.C. Next ground taken by the accused persons is that on an Application of O.P. No. 2 registered as Misc. Case No. 7 of 1998 under Section 340 Cr.P.C., the Court had passed an order that it would not be appropriate to pass any order till final disposal of the Misc. Application. Further it was argued before it that there were seven O.Ps. in the Suit but out of them only four have been made accused in the present case. Further it was argued that the applicants were not custodian of the documents pertaining to which fraud is alleged to have been committed by the applicants and that the offence under Section 466 I.P.C. would be invokable only against government servants while in the present case, applicants were not government servants, therefore, they also could not be summoned under Section 109 I.P.C.
7. The Revisional Court has dealt with each of the points raised before it one by one. Firstly it has dealt with the objection as to whether proceedings in the said case is barred by provisions of Section 195 Cr.P.C.?
8. Before proceedings to decide the said point, it has mentioned in the said order that it would transpire from perusal of the record of the case that one Civil Suit No. 100 of 1987, Rajbali Vs. Shiv Mangal was decided on 1.02.1993 in terms of compromise which had annexed with Commissioner Map 16 Ka-2 and after decision in that case, the applicants made interpolation in the said map showing the channel, which was shown existing coming out from the western side of the house of Shiv Mangal towards east and which was shown terminated four latha prior to the end of western boundary wall of the O.P. No.2/complainant. The said drain which was shown terminated at the said point was in the modified/interpolated map which was going further up to the channel which was situated/existing by the boundary wall of O.P. No.2. Such kind of interpolation was alleged to have been made in collusion with the concerned clerk. Therefore it was the allegation that after decision in the said case, the map which was annexed i.e. 16-Ka-2, which was part of the decree, in that, channel was shown extended by committing forgery in the said document and this could be known to the O.P. No.2 only when the accused applicants filed another Suit No. 508 of 1995. When this fact came into the knowledge of O.P. No. 2, he moved an application under Section 156 (3) Cr.P.C. before the lower court, which has summoned the accused applicants under the above-mentioned sections. The Revisional Court has recorded that the plea of the proceedings being barred by Section 195 Cr.P.C. was taken on four grounds:-
(i) An order has been passed by the lower court in Misc. Case No. 7 of 1998 under Section 340 Cr.P.C. to the effect that the said application would be decided only after final decision in the case.
(ii) O.P. No. 2 has made accusation against only four persons while the Suit was filed against seven persons.
(iii) The accused were not custodian of the said documents.
(iv) Section 466 I.P.C. is invokable only against government servant, hence accused applicants could not have been summoned under Section 466 I.P.C. read with Section 109 I.P.C.
9. In respect to the plea of Section 195 Cr.P.C., it is mentioned by the Revisional Court that from perusal of the said provision, it is absolutely clear that no mention has been made in the said section of offence under Section 466 I.P.C., hence no bar would be applicable as provided under Section 195 Cr.P.C. Further it is mentioned by it that when the said interpolation/fraud is stated to have been committed, no proceedings were pending before the trial court as the judgement had already been passed, hence it is apparent that the said interpolation was made not during the proceedings in the said Original Suit No. 100 of 1987 and because of that reason also, bar of Section 195 Cr.P.C. would not be applicable because had the said interpolation been made during the proceedings, the bar could operate provided the offence under the said section would be covered in provisions under Section 195 Cr.P.C. It is not the case in this matter as per allegations because the said interpolation has been done after closing of the proceeding in the said case.
10. I am in total agreement with the said finding of the Revisional Court and it would be appropriate to reproduce here Section 195 Cr.P.C. for the sake of convenience which is as follows:-
"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) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(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 on the complaint in writing of that Court, or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
11. Bare perusal of the said provision would indicate that nowhere in it, Section 466 I.P.C. has been provided as has been rightly mentioned by the Revisional Court in its order.
12. Further I deem it proper to take up the point as to whether the citation which has been relied upon by the learned counsel for the applicant would be applicable here or not which is Iqbal Singh Marwah and another Vs. Minaxi Marwah and another (2005) 4 SCC 370.
13. In this case the question involved was whether bar contained in Section 195 (1) (b) (ii) Cr.P.C. would apply if forgery of a document was committed before the said document was produced in Court. The Supreme Court in Sachida Nand Singh Case 1998 (2) SCC 493 observed that the said bar would not be applicable to a case where forgery of the document was committed before the document was produced in a Court. But, in view of conflict of opinion before decisions of the Supreme Court in Sachida Nand Singh and Surjit Singh Case [1996 (3) SCC 533], this appeal was placed before the Hon'ble Apex Court and in this appeal, the facts were that appellants filed proceedings before the District Judge for grant of probate of a will allegedly executed by the deceased (brother of the appellants). The respondents filed a Criminal Complaint for prosecution of the appellants and their mother under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 and 500 I.P.C. on the ground that the said will produced by the appellants was a forged and fictitious document. In view of the above bar contained in Section 195 (1) (b) (ii) Cr.P.C., the Magistrate dismissed the complaint. In revision, relying upon Sachida Nand Singh case, the Sessions Judge held that the bar contained in Section 195 (1) (b) (ii) would not apply where forgery of a document was committed before the said document was produced in court. The High Court upheld the order of the Sessions Judge and hence, the present appeal was preferred before the Hon'ble Supreme Court which held that clause (b) (ii) of Section 195 (1) Cr.P.C. 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. The scheme of clauses (a) and (b) (i) of Section (195) (1) being that the offence described therein 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 scheme of the section 195 Cr.P.C.
14. It is very much evident from the interpretation made by Hon'ble Apex Court that for any offence which has been stipulated under Section 195 Cr.P.C. quoted above, bar would be applicable only when forgery in the document is committed subsequent to its having been filed before the Court and not if the said forgery has been committed prior to its filing before the court. But in the present case, I am not concerned with such a situation to be assessed because the offence under Section 466 I.P.C. does not find mention in the provision under Section 195 Cr.P.C. It may also be mentioned here that the forgery which is stated to have been committed is alleged to have been committed after the conclusion of the trial and not during the court proceeding as it is admitted to the parties that the compromise decree had been passed which had annexed with it the said map which is alleged to have been subsequently tampered with by making some interpolation in the map annexed and in this act, the allegation is that the accused applicants had colluded with the concerned clerk and had made the interpolation, therefore, the said wrong which is stated to have been committed, was not committed during the court proceedings while the case was pending, therefore, even if this offence was covered under Section 195 Cr.P.C., the bar would not be applicable in the present case in view of the law which is cited above in the judgement relied upon by the applicant himself hence, the question of applicability of bar under Section 195 Cr.P.C. does not arise, therefore, benefit of the ruling relied upon by the learned counsel for the applicants can not be given.
15. The Revisional Court has further dealt with the objection raised that the Criminal proceedings are brought against four persons only while in the Original Suit, there were seven defendants. It is mentioned in this regard that impleading the accused depends upon knowledge of the complainant as to which particular accused in his opinion had committed the offence and it was the burden upon the complainant to adduce evidence in that regard, based on that only, the summons to the accused is issued, hence, even if there were seven defendants in the said suit, does not mean that all of them were required to be made accused in the present proceedings and in this regard also, the finding given by the Revisional Court seems to be reasonable, hence it deserves to be upheld.
16. Next, the point of invocation of offence under Section 466 I.P.C. is taken into consideration by the Revisional Court and it is held by it that as per ingredients of offence of Section 466 I.P.C., it is not necessary that only government servant could commit such an offence and not an ordinary citizen/ person because word 'whoever' has been used in the said section. I am absolutely in agreement with the opinion expressed by the learned Revisional Court in respect of this aspect.
17. I would like to reproduce here the Section 466 I.P.C. which is as follows:
"466. Forgery of record of Court or of public register, etc.- [Whoever forges a document or an electronic record], purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgement, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
18. The above section would indicate that following ingredients are required to be satisfied for constituting an offence under Section 466 I.P.C.
(a) Essential Ingredients.- An offence in this section has following essential ingredients:
(i) That the accused forged a document (or an electronic record);
(ii) That such document (or electronic record) was purported to be
(a) a record of proceeding of or in a court of justice; or
(b) a register of birth, baptism, marriage or burial or a register kept by a public servant as such; or
(c) a certificate or document purported to be made by a public servant in his official capacity as such; or
(d) an authority to institute or defend a suit; or
(e) to take any proceedings there in or to confess judgement; or
(f) a power of attorney.
19. It is apparent from the bare reading of section 466 I.P.C. that it seeks to treat forgery of certain specific kind of document as an aggravated form of offence.
20. The bare perusal of the above quoted section makes it clear that it begins with word 'whoever forges a document', these words nowhere imply that the person who forges the document would not include a private person and would have to be a government servant, hence the argument of the learned counsel for the applicants that for constituting an offence under Section 466 I.P.C., the accused has to be a Government Servant, does not stand to reason and the finding of the Revisional Court is absolutely in accordance with law.
21. In view of the above analysis made by me, I am convinced that both the impugned orders of the Trial Court and Revisional Court are in accordance with law and do not deserve to be set-aside.
22. This Application under Section 482 Cr.P.C. deserves to be dismissed and is, accordingly dismissed.
Order Date : 21.10.2019 A. Mandhani