Chattisgarh High Court
Dilip Kumar Agrawal vs Ram Kumar Chauhan on 16 March, 2012
HIGH COURT OF CHATTISGARH AT BILASPUR
CrMP No 287 of 2007
Dilip Kumar Agrawal
...Petitioners
Versus
Ram Kumar Chauhan
...Respondents
! Mr B P Gupta counsel for the applicant
^ Mr Vaibhav Goverdhan counsel for the non applicant
CORAM: Honble Mr T P Sharma J
Dated: 16/03/2012
: Judgement
ORDER
(Passed on 16.3.2012) (Application under Section 482 of the Cr.P.C.)
1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short `Code') the applicant has challenged legality and propriety of the order dated 25.11.2006 passed by the Additional Sessions Judge, Bhatapara, in Criminal Revision No.192/06, affirming the order dated 20.3.2006 passed by the Judicial Magistrate First Class, Bhatapara, in Criminal Complaint Case No.619/06, whereby the Judicial Magistrate First Class, Bhatapara has discharged the respondent substantially on the ground that the alleged forged document has been filed during the course of judicial proceeding, therefore, complaint at the instance of private party in absence of any complaint on behalf of the Court concern in terms of Section 195 (1) (b) (ii) of the Code was not maintainable.
2. As per nutshell case of the complainant/applicant, the respondent, then Patwari has committed forgery of his report and has filed the same before the revenue proceeding i.e. in a proceeding before the Court and thereby committed the offence punishable under Sections 463, 467, 468 and 420 read with Section 427 of the IPC. On the basis of complaint criminal case punishable for the aforesaid offences has been registered against the respondent. Charge was framed. Same was challenged before the revisional Court and the revisional Court while reversing the order has directed the Court to hear the parties and framed appropriate charge. After hearing the parties the trial Court has discharged the respondent substantially on the ground that forged document has been filed in a judicial proceeding by the respondent, therefore, complaint by the Court was sine qua non in terms of Section 195 (1) (b) (ii) of the Code. In absence of such complaint the Court was not competent to frame the charge or take cognizance at the instance of private complainant. Even the trial Court has considered that the respondent has also punished in departmental inquiry for his act. Same was challenged before the revisional Court and the revisional Court has affirmed the order passed by the trial Court.
3. I have heard learned counsel for the parties, perused the orders impugned, copy of the complaint and copy of other documents.
4. Learned counsel for the applicant submits that this is not the case in which the respondent has committed the offence in a judicial proceeding, but in the present case the respondent has committed the offence and has produced forged document in a judicial proceeding, therefore, complaint at the instance of private party was maintainable.
5. On the other hand, learned counsel for the non-applicant opposes the petition and submits that both the Courts below have not committed any illegality. Complaint by competent Court under Section 195 of the Code was mandatory before taking cognizance of the offence.
6. As per Section 195 (1) (b) (ii) of the Code, complaint in writing of the Court relating to the offence of forgery committed in respect of a document produced or given in a proceeding in any Court is sine qua non. Section 195 (1) (b)
(ii) of the Cr.P.C. reads as under:-
"Section 195 (1) (b) (i) xxx xxx xxx
(b) (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
(b) (iii) xxx xxx xxx"
7. As per undisputed fact of the case and claim of the petitioner, the present respondent has forged the document i.e. report and has submitted the same before the revenue Court showing the same as genuine and thereby committed forgery of the document, inter alia, the respondent has not committed offence/forgery of the document during the course of judicial proceeding or has not committed the offence relating to such document after filing of the same in a judicial proceeding.
8. As per provisions of sub-section (3) of Section 195 of the Code, the revenue Court is also the Court. Section 195 (3) of the Code reads as under:-
"195(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."
9. While dealing with the question of creation of bar under Section 195 (1) (b) (ii) of the Code in the matter of Surjit Singh and others v. Balbir Singh1, the Supreme Court held that bar is created for taking cognizance on the basis of complaint made by a private party.
10. While dealing with the same question, the Supreme Court in the matter of M.S.Ahlawat v. State of Haryana and Another2 has held the same view.
11. In the matter of Sachida Nand Singh and Another v. State of Bihar and Another3 three judges Bench of the Supreme Court has observed that bar under Section 195(1) (b) (ii) of the Code of taking cognizance of offence described in Section 463 or punishable under Sections 471, 475, 476 of the Indian Penal Code committed in respect of a document produced or given in evidence in a proceeding in a Court would not attract if offence alleged was committed before production of document before the Court.
12. Conflicting judgment rendered in the matters of Surjit and Sachida (supra) were placed before five judges Constitution Bench for interpretation of Section 195 (1) (b)
(ii) of the Code. In the matter of Iqbal Singh Marwah and another v. Meenakshi Marwah and another4 five judges Constitution Bench of the Supreme Court has approved the law declared in the matter of Sachida (supra). Para 33 of the matter of Iqbal (supra) reads as under:-
"33. In view of the discussion made above, we are of the opinion that Sachinda 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.
In the light of law laid down by the Constitution Bench of the Supreme Court in the matter of Iqbal (supra) it has been held that complaint by a private party relating to forgery of the document prior to producing before the Court is maintainable and bar under Section 195 (1) (b) (ii) of the Code is not attracted for taking cognizance.
13. In the present case, as per undisputed fact, the present respondent has committed the offence of forgery of report and has submitted the forged report before the revenue Court. The respondent has not committed the offence relating to the document after filing the report before the revenue Court or during the course of inquiry, trial or pendency of the case, inter alia, forged document has been filed.
14. As held by the Supreme Court in the matter of Iqbal (supra), bar created under Section 195 (1) (b) (ii) of the Cr.P.C. is not attracted in the present case.
15. By discharging the respondent the trial Court has committed illegality and by dismissing the revision the revisional Court has also committed illegality. Discharge of the respondent in the present case would amount to miscarriage of justice and discontinuance or dropping of criminal proceeding against the respondent would amount to misuse/abuse of process of law.
16. Consequently, the petition is allowed, order impugned and order dated 20.3.2006 passed by the Judicial Magistrate First Class, Bhatapara are hereby quashed. Case is remitted to the Court of Judicial Magistrate First Class, Bhatapara. Parties shall remain present before the Judicial Magistrate First Class, Bhatapara on 25.4.2012 for further proceeding of the case.
J U D G E