Gujarat High Court
Budhalal vs State on 11 September, 2008
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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CR.MA/6402/2002 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6402 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
Sd/-
====================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
YES
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
====================================
BUDHALAL
CHHOTALAL RANA & 2 Petitioners
Versus
STATE
OF GUJARAT & 1 - Respondents
====================================
Appearance
:
MR SATYEN B RAWAL for
Petitioners.
PUBLIC PROSECUTOR for Respondent No. 1.
MR NILESH
A PANDYA for Complainant.
====================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 11/09/2008
ORAL JUDGMENT
The applicants original accused have filed this application under Section 482 of the Code of Criminal Procedure praying for quashing and setting aside the private complaint filed by the opponent No.2 original complainant before the Chief Judicial Magistrate, Nadiad (for short 'Trial Court') which is registered as Criminal Case No. 382 of 1996 and charge-sheet filed on 13.02.1996 and further orders / proceedings of the said Criminal Case No.382 of 1996 pending before the Trial Court.
This Court has issued rule on 26.11.2002 and considering the facts and circumstances of the case, more particularly, the nature of the disputes and the age of the petitioner No.2 who was aged about 83 years and was suffering from paralysis and was totally bed-ridden and at the verge of death, was also dragged into litigation by the complainant, ad-interim relief was granted in terms of paragraph 6 (c) of the petition whereby further proceedings of Criminal Case No. 382 of 1996 pending before the Chief Judicial Magistrate, Nadiad were stayed. The said ad-interim relief which was later on made interim relief and was continued till the final disposal of this petition.
Mr. Satyen B. Raval, learned advocate appearing for the petitioners has submitted that the original complainant is the real sister of petitioner Nos.1 & 2 and civil dispute between the parties was pending and mainly one of the point in issues is the contention of the petitioner No.1 that the original complainant is occupying the suit property on the leave and license basis. He has further submitted that Special Civil Suit No. 12 of 1995 having been dismissed by the trial Court, First Appeal No. 1802 of 1997 is pending before this Court. During the course of the said suit before the Trial Court, the parties adduced their respective evidence in the shape of documents and oral testimony and with respect to the particular piece of evidence i.e. Mark 4/2, the original complainant has filed impugned private complaint. It was the say of the original complainant in the complaint that during the course of the trial of the suit, the petitioners have allegedly created false evidence with knowledge to support the cause of the suit and with a view to cause wrongful loss to the rights of the complainant. On institution of the complaint before the learned Chief Judicial Magistrate, Nadiad, he ordered investigation under Section 156 (3) of the Code of Criminal Procedure and pursuant to it, the police investigated the case and submitted charge-sheet along with the report on 13.02.1996. The learned Chief Judicial Magistrate has taken the cognizance of the criminal complaint and further proceedings of the criminal case were being conducted in the Trial Court. The petitioners are challenging the action of the Trial Court of taking cognizance of the case and also the complaint and further proceedings as the same are in flagrant violation of provisions of the Code of Criminal Procedure and hence, the complaint, charge-sheet and further proceedings are required to be quashed and set aside.
Mr. Raval has further submitted that considering the allegations in the complaint in its face value, it appears that the allegations levelled therein are clearly covered within the four corners of Section 195 of the Criminal Procedure Code (for short 'Code') and hence, except the Court concerned, the complaint at the instance of none else is cognizable. He has also referred to the guidelines given in the case of State of Haryana and others V/s. Bhajanlal and others, 92 Criminal Law Journal 527 (SC). He has invited the Court's attention to Clause 6 of the said guidelines which says that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. Despite these guidelines, the Trial Court has taken cognizance ignoring the express bar contained under Section 195 of the Code. Mr. Raval has further submitted that during the course of suit, the complainant being the defendant having flouted the injunction order of the Trial Court and the petitioners having moved the appropriate application for the disobedience of the Court, the complainant resorted to file complaint of this nature only with an ulterior motive to dictate the terms. The position of the suit building was recorded in the shape of the Panchnama by the Court Commissioner and thereafter when the complainant flouted the order of the injunction, the position subsequent to such a flagrant violation also came on record in the shape of second Panchnama by the Court Commissioner. In view of clear and unequivocal evidence of initial as well as later position of the suit building, the complainant personally asked to the petitioners that she was prepared to settle the matter provided the application for disobedience of the Court's order be withdrawn. Such a proposal having not been given any heed to by the petitioners, ultimately, the complainant filed the present complaint only with a view to pressurize the petitioners and to seek vengeance for having filed such an application. He has, therefore, submitted that the present case also falls in the category 7 of the Bhajanlal's case. Mr. Raval has further submitted that the complaint in question is an abuse of the process of the Court. Only with an ulterior motive dictating the terms in civil litigation and further in view of statutory bar, there are no chances of conviction and hence, there is no legal justification in proceeding with the complaint.
Mr. Raval has further submitted that the opening words of Section 195 bars cognizance at the very threshold. Hence, no fruitful purpose is going to be served in continuing the criminal proceedings against the petitioners. He has further submitted that if the present complaint is allowed to continue against the petitioners, it would be an instrument of harassing the petitioners and would result into failure of justice.
In support of his submissions, he relied on the decision of the Hon'ble Supreme Court in the case of Patel Laljibhai Somabhai V/s. The State of Gujarat, AIR 1971 SC 1935 wherein it is held that the offences about which the court alone, to the exclusion of the aggrieved private parties is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. The Court further held that the purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195 (1) (b) and (c) is both to save the accused person from vexatious or baseless prosecutions spited by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal Courts dealing with the private complaint. It is for this reason that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party.
He has further relied on the decision of the Hon'ble Supreme Court in the case of M. Narayandas V/s. State of Karnataka and others, AIR 2004 SC 555 for the proposition that at the stage of investigation, Section 195 has no application. The investigation is already over and charge-sheet is filed with the Criminal Court and the Court has taken the cognizance of the offences. The Court has, therefore, made it clear in this case that the question whether Section 195 applies to documents forged / fabricated prior to they being produced in the Court. That question only arises if the Court takes cognizance. The case before the Hon'ble Supreme Court was at the investigation stage. Hence, the Court held that there was no ground or reason on which the complaint / FIR can be quashed.
Mr. Raval further relied on the decision of the Hon'ble Supreme Court in the case of Sushil Kumar and others V/s. State of Haryana and others, AIR 1988 SC 419 wherein the offence was in respect of a document produced in the Court as the accused had produced a copy of Partnership Deed forged by him. Original Partnership Deed that was forged was not produced n the Court. In that connection, the Court held that Sub-sec.
(1)(b)(ii) of S. 195 of the Code lays down that no court shall take cognizance of any offence described in the sections mentioned therein 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". Interpreting the similar language of the corresponding provision in the earlier Criminal Procedure Code of 1898, the Privy Council in Sanmukhsingh V/s. The King, AIR 1950 PC 31, observed that by production of a copy of the allegedly forged document it cannot be said that the document itself was given in evidence. Accordingly, the Court held that the document alleged to have been forged was not in the present case produced in the Court and hence, provisions of Section 195(1)(b)(ii) of the Code have no application.
Deriving the support from this decision, Mr. Raval has further submitted that despite the fact that the document was produced before the Civil Court, no such application was given by the complainant in that Court treating the same document as forged one. Nor any application was moved to that effect. Even the Court has also not given any finding to that effect and independently decided the suit. He has, therefore, submitted that the complaint filed by the complainant is not maintainable and hence, the said complaint is required to be quashed and set aside while exercising the powers under Section 482 of the Code of Criminal Procedure.
Mr. Nilesh Pandya, learned advocate appearing for the complainant, on the other hand, has submitted that the petitioners have filed the present petition at a belated stage when the proceedings have already been initiated and the evidence has also been recorded. The petitioners have forged the document only with a view to get the suit decreed in their favour. The suit filed by the petitioners before the Trial Court was dismissed. Since the petitioners have forged the documents and since the trial Court has not given any finding on this issue, it is only the Criminal Court before whom the issue can be threshed out and if ultimately, it is found that the petitioners have forged the said document, they would face the consequences. He has, therefore, submitted that this Court should not exercise its extra ordinary jurisdiction under Section 482 of the Code and dismiss the petition.
In support of his submissions, he relied on the decision of the Hon'ble Supreme Court in the case of State of Punjab V/s. Raj Singh and another (1998) 2 SCC 391 wherein the Court took the view that the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195, Cr. P. C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)
(b), Cr. P. C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340, Cr. P. C. Mr. Pandya further relied on the decision of the Hon'ble Supreme Court in the case of Sachida Nand Singh and another V/s. State of Bihar and another, (1998) 2 SCC 493 wherein it is held that it would be a strained thinking that any offence involving forgery of a document if committed for 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. It must therefore be held 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.
Based on the aforesaid decisions, Mr. Pandya has strongly urged that bar contained in Section 195 (1) (b) (ii) of the Code has no application to the facts of the present case and the proceedings which are pending before the trial Court pursuant to the complaint filed by the complainant should be allowed to be proceeded with and the present petition should, therefore, be dismissed.
Having heard learned advocates appearing for the respective parties and having considered the complaint, records and proceedings and the averments made in the present petition as well as the statutory provisions contained in Section 195 of the Code and the authorities cited on the subject, the Court is of the view that the present petition deserves to be allowed and the complaint filed by the original complainant in the Trial Court and further proceedings therein deserve to be quashed and set aside, by virtue of the explicit bar contained in Section 195 (1) (b) (ii) of the Code. It is an admitted position that original document was produced before the Civil Court in civil proceedings. No application was moved by the original complainant before the Civil Court treating the said document as forged one nor any finding was given by the Civil Court on that issue. The Civil Court has independently examined the merits and de-merits of the suit and dismissed the suit of the petitioners against which First Appeal is pending before this Court. An allegation is made in the present petition that the complainant has filed the complaint only at the stage when the complainant who is the defendant in the suit has violated the interim order of the Court and when the petitioners have filed an application for taking action against the complainant / defendant for disobedience of the said interim order. Instead of filing any application before the Court where suit proceedings are pending, the complainant has filed the police complaint before the Trial Court. Till the investigation was going on and till the charge-sheet is filed, the petitioners have not approached this Court. It is only when the cognizance of the offence was taken by the Trial Court, the present petition is filed.
In the above view of the matter, the bar contained in Section 195 (1) (b) (ii) of the Code would clearly apply to the facts of the present case. Section 195 deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Section 195 (1) (b) (ii) is relevant for our purpose which says that no Court shall take cognizance 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.
It is precisely the case of the complainant that the offence has been committed by the petitioners in respect of a document produced or given in evidence in a proceeding in any Court and hence, except on the complaint in writing of that Court, by such Officer of the Court as that Court may authorize in writing in this behalf, or of some other Court, which that Court is subordinate. Since it has not been done and straightway, the complainant has filed the private complaint, the bar contained in Section 195 (1) (b) (ii) is clearly applicable.
The judgments relied on by Mr. Nilesh Pandya have no application to the facts of the present case. In the case of State of Punjab V/s. Raj Singh and another (supra), the Court was concerned with the quashing of FIR and it was at the investigation stage, the quashing petition was filed. The Court has not taken any cognizance. Here in the present case, the cognizance was already taken by the Court and at that stage, the present petition is filed.
Even the decision in the case of Sachida Nand Singh and another V/s. State of Bihar and another (supra), has no application to the facts of the present case as in that case, the offence involving forgery of document was alleged to have been committed far outside the proceedings of the Court and lying before its production in the Court. Here in the present case, the document was produced during the pendency of the suit and offence alleged to have been committed was not at a distant place nor lying before its production in the Court. The said decision is, therefore, not applicable to the facts of the present case. On the contrary, decisions relied upon by Mr. Raval are directly on the issue. The guidelines laid down by the Hon'ble Supreme Court in the case of Bhajanlal, more particularly guidelines 6 & 7 are straightway applicable and even the judgment of the Hon'ble Supreme Court in the case of Patel Laljibhai Somabhai V/s. The State of Gujarat (supra) is also on the point involved in the present case.
The Court is, therefore, of the view that in view of the bar contained in Section 195 (1) (b) (ii), the Trial Court has committed an error in taking cognizance of the complaint. The complaint is not maintainable. If the complainant has any grievance against the document, she should have approached to the Civil Court where such document was produced. Since it has not been done and based on the private complaint, the cognizance was taken by the Trial Court which is contrary to the provisions of Section 195 (1) (b) (ii) of the Code and hence, complaint and all other proceedings taken out therein are required to be quashed and set aside.
Accordingly, this petition is allowed and the complaint filed before the Trial Court being Criminal Case No. 382 of 1996 is hereby quashed and set aside. Rule is made absolute.
Sd/-
[K. A. PUJ, J.] Savariya Top